PROCEDURES FOR SUSPECTED BREACHES OF THE APS CODE OF CONDUCT

Purpose

The purpose of these procedures is to:

  • outline the process how alleged and/or suspected breaches of the Australian Public Service (APS) Code of Conduct by employees and former employees of the Department of the Environment (the Department) will be handled
  • explain the rights of an employee or former employee who may be the subject of an allegation and/or may be suspected to have breached the APS Code of Conduct

Relationship to other Department of the Environment Policies

To obtain a full picture of your responsibilities and rights under the Department’s Conduct and Ethical Behaviour Framework, these procedures should be read in conjunction with Chief Executive Instructions (CEI’s) and other related Policy documents available on the Code of Conduct and EthicsIntranet page including:

  • Code of Conduct Guidelines
  • Workplace Respect Policy
  • Allegations of Fraud & Criminal Behaviour by Departmental Employees
  • Public Interest Disclosure Procedures

Legislative Requirements

This policy constitutes the procedures required by subsection 15(3) of the Public Service Act 1999 (the Act) for determining whether an APS Department of the Environment employee, or a person who was an APS Department of the Environment employee at the time of the alleged or suspected misconduct, has breached the APS Code of Conduct (Code of Conduct) as set out in section 13 of the Act.

Subsection 15(4) of the Act provides that these procedures must comply with basic procedural requirements set out in Chapter 6of theAustralianPublic Service Commissioner's Directions 2013 (Commissioner’s Directions) and must have due regard to procedural fairness.

The Commissioner’s Directionsalso require that the process must be carried out with as little formality and as much expedition as a proper consideration of the matter allows. They also require that the person who determines whether an APS employee, or former employee, has breached the Code of Conduct and who imposes a sanctionmust be, and must appear to be, independent and unbiased.

Procedural Fairness

Section 15(4) of the Act requires the agency procedures to have due regard to procedural fairness. In the context of decisions associated with suspected misconduct, procedural fairness generally requires that an employee suspected of breaching the Code of Conduct must:

  • be informed of the details of the possible breach and the sanctions that may be imposed
  • be given a reasonable opportunity to properly respond and put their case before any decision is made (the ‘hearing’ rule)
  • the decision maker must act without bias or an appearance of bias (the ‘bias’ rule)
  • there must be facts or information to support adverse findings (the ‘evidence’ rule).

Application

These procedures apply to all current Department of the EnvironmentAPS ongoing and non-ongoing employees.This includes all part time, casual, irregular and intermittent employees who are employed with the department under section 22 of the Public Service Act 1999.

These procedures also applyto former APS Department of the Environment employees who are alleged or suspected to have breached the Code of Conduct while they were an APS Department of the Environment employee.

These procedures also apply to a person who engages in conduct set out in subsection 15(2A) of the Act before being engaged by the Department as an APS employee.

Unless the contrary intention appears, a reference in these procedures to an employee includes a reference to a former employee who is alleged or suspected of having breached the Code of Conduct while a Department employee.

The sanction procedures set out below how a Delegate may impose a sanction under subsection 15(1) of the Act do not apply to former departmental employees.

Authorisations

The persons who occupy the following departmental positions are authorised by the Agency Head to make determinations as to whether a Department employee has breached the Code of Conduct:

  • Deputy Secretaries
  • First Assistant Secretaries
  • Assistant Secretary - People Strategies Branch (the Primary Delegate)
  • Assistant Secretary – Business Services Branch
  • General Manager - Australian Antarctic Division.

Delegations

Subsection 15(1) of the Act empowers an Agency Head to impose sanctions on an APS employee in the Agency who is found to have breached the Code of Conduct as set out in section 13 of the Act.

The persons who occupy the above listed positions also hold the Delegation to exercise the Agency Head's powers under subsection 15(1) of the Act to impose sanctions on a current Departmentemployee who is determined in accordance with these procedures to have breached the Code of Conduct.

Sanctions cannot be imposed upon a former APS Department employee.

Workplace Behaviour and Conduct Unit

The Workplace Behaviour and Conduct Unit (WBCU):

  • provides assistance to managers and employees with concerns raised about the workplace conduct and behaviour of Department employees and supports the Department's legal and ethical standards of conduct
  • conducts preliminary inquiries and assessments of allegations made about the conduct and behaviour of Department employees and makes recommendations to the Director, Capability and Performance Section (CPS) andthe Primary Delegate about any further action that may be required in the circumstances
  • closely liaises with all areas of the Department and other Commonwealth agencies including the Australian Public Service Commission and the Merit Protection Commissioner, about APS Code of Conduct and ethical behaviour issues
  • provides education, guidance and advice to Department employees and managers on the APS Code of Conduct and Fraud awareness initiatives to promote integrity in the performance of employees duties, in departmental processes and procedures and in the use of the Department’s resources and Information and Communications Technology (ICT) systems
  • reports on trends and systemic policy, process and/or procedural deficiencies identified during investigations to positively assist with the Department’s strategic direction.

Responsibilities& Preliminary Inquiries

WBCUstaff have responsibility for making initial inquiries into and assessing allegations received by the department about suspected breaches of the Code of Conduct by Department employees.

When allegations of suspected breaches of the Code of Conduct are received, WBCU staff will in most cases undertake discreet and confidential preliminary inquiries into the matter to assess the issues raised and make recommendations to the Director CPSas to any further action that may be required or appropriate in the circumstances.

Initial preliminary inquiries are in most cases essential to enable a thorough and informed assessment of the issues with a view to establishing whether the allegations may be frivolous and/or vexatious and/or lacking in substance or merit, or if further action may be required either through less formal administrative action/mechanisms or through a formal Code of Conduct investigation process under these procedures.

It is important for employees to be aware that an allegation made that an employee is suspected to have breached the Code of Conduct, does not automatically or necessarily mean that a formal Code of Conduct investigation process under these procedures is required or will be conducted. In many cases less formal management action such as counselling, further training and development and/or other people management practices may be adopted where considered appropriate to the circumstances to address and resolve the matter.

Examples include cases where the suspected breach is considered to be more minor in nature,in cases where the employee admits to the behaviour of concern and/or admits that their behaviour fell short of the Department’s conduct and ethical behaviour expectations and the APS Code of Conduct.

Formal Code of Conduct Investigation Process

Where the Director CPSconsiders that the circumstances of a particular matter warrants the commencement of a formal Code of Conduct investigation process under these procedures the matter will be referred to the Primary Delegate for consideration of the commencement of a formal Code of Conduct investigation process. Where the Primary Delegate determines that a formal Code of Conduct investigation process is required an Investigator will be appointed by the Primary Delegate to conduct the formal Code of Conduct investigation process. The Investigator may be an external consultant or another APS employee.

Where the Primary Delegate considers that it would not be appropriate for them to make the decision that a particular matter warrants the commencement of a formal Code of Conduct investigation process, the Primary Delegate will refer the matter to another Authorised Delegate for their consideration and decision.

In those circumstances, where another Authorised Delegate makes the decision that the matter warrants the commencement of a formal Code of Conduct investigation process, the Primary Delegate will remain responsible for appointing an Investigator. However, where the Primary Delegate considers it would also not be appropriate in the circumstances for them to do so the Primary Delegate may refer the matter to another Authorised Delegate to appoint an Investigator.

During the formal investigation process the Investigator will provide a Code of Conduct Notice to the employee subject of the allegations setting out:

  • an outline of the matters which have given rise to concern
  • the subsections of the Code of Conduct that may have been breached if the allegations were found by a Delegate to be substantiated
  • the sanctions specified in subsection 15(1) of the Act
  • an indication of the next steps which will be taken in accordance with these procedures and who will be taking them
  • advice on the opportunity to participate in an electronically recorded interview with the Investigator to discuss the matter, should the employee wish to do so
  • advice on the employee’s entitlement to have a support person of their choice present during the interview
  • advice on the opportunity to provide a written statement to the Investigator about the suspected breaches of the APS Code of Conduct, should the employee wish to do so.

The employee does not have to respond, either in writing or orally, to the Code of Conduct Notice, participate in an interview or provide a written statement if the employee does not wish to do so.

The employee is entitled to have a person of their choice, such as a supervisor, another colleague, or a union or legal representative, present during any interview about the allegations if they wish to. However, this person’s role is restricted to be one of support only and they will not be entitled to participate in the interview or advocate for the employee during the interview. The employee’s support person cannot be a person who is or may be either a potential witness, or is otherwise involved, in any of the matters subject of the interview or the investigation process.

If the details of the suspected breaches of the Code of Conduct vary during the formal Code of Conduct investigation process under these procedures, the employeewill be informed of the variation of those details in writing by the Investigator.

Upon completion of all necessary inquiriesthe Investigator must form an opinion/view whether the employee has, or has not, breached the APS Code of Conduct and must submit a written investigation report about the matters to a Delegate.

The opinions/views presented in the investigation report, on whether a breach of the APS Code of Conduct has or has not occurred, must be reached through applying a 'balance of probabilities' test.

The Delegate’s Role

A Delegate of the Secretary for Code of Conduct matters, as described in the Authorisations section above, has the authority to determine whether an employee has or has not breached the Code of Conduct and if so, what sanction/s, if any, should be imposed.

The Delegate who determines whether an employee, or former employee, has breached the Code of Conduct and who imposes a sanctionmust be, and must appear to be, independent and unbiased.

The Delegate must make a written determination whether or not an employee has breached the Code of Conduct. The Delegate may also form the view that the matter is not serious enough to warrant any further action, that less formal action is appropriate in the circumstances or that there is no substance to the allegation.

In all cases a final determination must not be madeby a Delegate in relation to a suspected breach of the Code of Conduct by an APS employee, or former employee, or impose a sanction on an employee, unless reasonable steps have been taken to inform the employee, or former employee, of the details of the suspected breach and, in the case of a current employee, the sanctions that may be imposed.

No Breach Determined

After receiving an investigation report from the Investigator, if the Delegateforms the view that the employee has not breached the Code of Conduct the Delegate will inform the employee in writing of the determination and the process will be finalised and closed.

Preliminary Views

Ifthe Delegate forms a preliminary view that the employee has breached the Code of Conduct, the Delegate must provide the employee with a copy of the investigation report, and any attachments to the report, as well as written advice of the Delegate’s preliminary views on breaches of the Code of Conduct and any sanctions being considered by the Delegate.

The Delegate’s written advice on preliminary views must also set out the factors that are under consideration in determining any sanctions to be imposed.

The Delegate’s written advice on preliminary views must also provide the employee with an opportunity to make written submissions to the Delegate, should the employee wish to do so, about the investigation report and the Delegate’s preliminary views on breach and sanction.

The timeframe provided to an employee to make written submissions to the Delegate will be a period of 7 days, or any longer period agreed to by the Delegate.

Final Determinations

Following the timeframe provided to the employee to make written submissions, and after considering any submissions received from the employee, the Delegate must make final determinations if the employee has or has not breached the Code of Conduct. If the Delegate determines the employee has breached the Code of Conduct, the Delegate must also make a decision on the imposition of sanctions in respect of the determined breaches of the Code of Conduct, or about any other less formal action if considered appropriate to the particular circumstances of the matter.

The standard of proof used by the Delegate in determining whether a breach of the APS Code of Conduct has or has not occurred is the ‘balance of probabilities’ civil standard of proof. This means that the Delegate must be satisfied that a breach is more probable than not. This civil standard of proof differs from the criminal standard of proof which is ‘beyond reasonable doubt’.

The Delegate must provide the employee with written advice on the final determination on breaches of the Code of Conduct and any final determinations made on the imposition of sanctions. Final determinations on breaches of the Code of Conduct and final determinations on the imposition of sanction/s may be made by the same Delegate or may be separated and made by two individual Delegates if considered appropriate to the circumstances of the particular matter.

Workplace Conduct and Behaviour History

The employee’s APS employment history, including any records of previous informal or formal counselling and/or workplace conduct and behaviour issues may be examined as part of the assessment process of considering and determining appropriate sanctions to be imposed or any other less formal administrative management action to be taken.

Suspension from Duties

The Public Service Regulations 1999provide that an Agency Head may suspend an APS employee if, on reasonable grounds, the Agency Head believes:

  • the employee has, or may have breached the Code of Conduct
  • suspension is in the public, or the Agency’s, interest.

A Delegate of the Secretary may give consideration to suspending an employee from duties, with or without remuneration or temporarily transferring the employee to another area of the Department, either prior to or after the commencement of a formal Code of Conduct investigation process.

Confidentiality

The Privacy Act 1988and the Information Privacy Principles (IPP) regulate access to and the use and disclosure of personal information.

Personal information is defined in section 6 of the Privacy Act 1988as: ‘information or an opinion…about an individual…whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.

During the course of preliminary inquiries, or formal investigations, into allegations of potential or suspected breaches of the APS Code of Conduct, or after inquiries/investigations are completed, personal information about an employee subject of an allegation may, where necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2), including:

  • other Commonwealth agencies and bodies who may have been involved in the matter, such as the Commonwealth Ombudsman and the Office of the Privacy Commissioner
  • an APS agency where the employee moves or seeks to move in the future.

During the course of preliminary inquiries, or formal investigations, into allegations of potential or suspected breaches of the APS Code of Conduct, or after inquiries/investigations are completed, in accordance with the principles of procedural fairness, the employee may be provided with personal information about an individual who is a party to the investigation including the evidence and/or information the individual has provided. These individuals may include the complainant and any witnesses to the matter.

Prior to disclosing any information about the outcomes of Code of Conduct inquiries and/or investigations, the Department will have due regard to the Privacy Act 1988, the Public Interest Disclosure Act 2013andAustralian Public Service Commission (APSC) Circular No 2008/3: Providing information on Code of Conduct investigation outcomes to complainants todetermine whether any personal information can be disclosed and in what circumstances.

General information which contains no personal information may routinely be disclosed to others where the Department considers it necessary, appropriate and reasonable to do so.

If a departmental employee:

  • becomes the subject of an allegation of a potential breach of the APS Code of Conduct and leaves the Department’s employment before a determination is made whether or not the employee has breached the APS Code of Conduct
  • is found by a Delegate to have breached the APS Code of Conduct and subsequently leaves the Department’s employment, whether a sanction is imposed or not
  • is found by a Delegate to have breached the APS Code of Conduct and leaves the Department’s employment before a decision about imposing a sanction is made

information about the allegation or determined breach of the APS Code of Conduct may be disclosed by the Department to any prospective or new APS agency employing the former Department of the Environment employee.