Australian Bureau of Statistics
Managing Breaches of the Code of Conduct (MISCONDUCT)
APS VALUES AND THE CODE OF CONDUCT
6 The APS Code of Conduct (s.13 of the Public Service Act 1999) is a statement of the standards of behaviour and conduct that are expected of people who work in the Australian Public Service.
7 All ABS employees are required to uphold the APS Values and Employment Principles and abide by the Code of Conduct.
8 The Code of Conduct requires that ABS employees must:
b the employee's duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
9 The following principles apply to the handling of breaches of the Code of Conduct in the ABS:
(ii) the parties have the right to know of, and comment on, any information which is damaging to their case or interests; and
(iii) there must be facts or information to support adverse findings.
c The person who determines whether the employee has breached the Code of Conduct must be independent and unbiased.
d An APS employee who does not exercise the opportunity to furnish a statement in relation to the suspected breach shall not, for that reason, be taken to have admitted the suspected breach.
e In establishing contested facts, and in reaching a conclusion as to whether a breach of the Code of Conduct has occurred, the standard of proof to apply will be the balance of probabilities. That is, taking account of all available relevant information, an investigator will ask themself what is more likely to have happened in a particular case.
f Any investigation will comply with all relevant legislation, e.g. the Privacy Act 1988.
12 These guidelines only deal with managing alleged breaches of the Code of Conduct. Underperformance is managed under separate guidelines. Determining the difference between a potential breach of the APS Code of Conduct and a work performance issue is sometimes difficult and each case will be considered on its merits. The Australian Public Service Commission has issued guidance for situations where it is not clear whether conduct should be dealt with under the performance management process or as a possible breach of the APS Code of Conduct. In such cases, managers are encouraged to create an Incident ticket on Services@ABS, under People > People Management to seek early advice from the People Management and Wellbeing Section.
b decide what, if any, sanction(s) is appropriate in all the circumstances.
CODE OF CONDUCT INVESTIGATIONS AND INTER-AGENCY MOVES
14 Where a decision has been made to move an employee to another agency under section 26 of the Act (including on promotion), and an employee is suspected of breaching the Code of Conduct and has been informed of the suspected breach and the sanctions that may apply, the move will not take effect until the matter is resolved, unless the current Agency Head and new Agency Head agree otherwise. Resolution of the matter is once a determination is made or it has been decided that a determination is not necessary. Further guidance on the release of information relating to Code of Conduct investigations to other agencies can be found at paras 65 - 69.
15 If a determination is made that the employee has breached the Code of Conduct and a move to another agency under Section 26 of the Act then occurs, it is the responsibility of the gaining agency to determine what, if any, sanction should apply. See paragraph 36 for further information.
a ABS Policy and Legislation Manual;
b ABS Manual of Personnel Management; and
c Chief Executive Instructions.
Line Manager/Director Responsibilities
20 Line managers are expected to maintain high standards of honesty, integrity and propriety and to ensure that their employees are familiar with, and meet, the required standards of work performance and conduct. When standards are breached, line managers and/or Directors should take prompt action to remedy the situation.
21 At this early stage, line managers and/or Directors are encouraged to create a new Incident ticket on Services@ABS, under People > People Management, for referral to the People Management and Wellbeing Section for advice and assistance.
22 If a line manager and/or Director believes that an ABS employee(s) may have breached the Code of Conduct, they should ask the employee(s) involved for an explanation. If the explanation is accepted, the matter may go no further if the behaviour is not repeated.
23 If the line manager and/or Director is not satisfied with the employee's explanation, they will liaise with the People Management and Wellbeing Section, and discuss the appropriate course of action to take in relation to the potential breach of the Code of Conduct. Where the potential breach is minor, or where there is a pattern of conduct which will need to be treated more seriously unless rectified, the options are:
b more formal counselling, where a written record of the discussion is made and will be provided to the People Management and Wellbeing Section to be retained on a 'Staff in Confidence' file held in that area.
24 Where options of this kind have been unsuccessful, or where the seriousness of the potential breach clearly warrants immediate consideration of formal action, the line manager and/or Director will refer the matter, together with any relevant documentation, to one of the following people:
b the Director, People Management and Wellbeing Section; or
c the Assistant Statistician, Human Resources Branch; or
d the Chief Operating Officer, Strategies, Services & Technology Group.
25 For ease of reference, these people are referred to in these procedures as the Conduct Case Managers.
26 If a line manager and/or Director becomes aware of any criminal offence involving ABS employees, he or she must immediately advise the appropriate Conduct Case Managers (refer paragraphs 47 to 48).
Flowchart of Line Manager and/or Director Responsibilities
27 The Director or Assistant Director, People Management and Wellbeing Section will coordinate and case manage all cases involving non-SES employees requiring action to determine whether there has been a breach of the Code of Conduct. Where the employee involved is an SES employee, the Assistant Statistician, Human Resources Branch or the Chief Operating Officer, Strategies, Services & Technology Group, may manage the case.
28 The need for such action may have arisen following a report from a line manager and/or Director, from a public interest whistleblowing disclosure, or from some other source, such as a prior investigation undertaken by relevant parties such as ABS Security or the Australian Federal Police. Reports of alleged breaches of the Code of Conduct received under the Whistleblowing procedures will be handled in accordance with the Public Interest Whistleblowing guidelines.
29 APS employees who have, before engagement in the APS, provided false or misleading information, wilfully failed to disclose information, or otherwise failed to act with honesty or integrity, in connection with their engagement, will be dealt with in the same way as an employee suspected of breaching the Code of Conduct.
30 Once a matter has been referred to the Conduct Case Manager, they may decide to personally investigate and determine whether, on the balance of probabilities, there has been a breach of the Code of Conduct. Alternatively, they will appoint an independent investigator to make appropriate inquiries and recommend whether, on the balance of probabilities, a breach has occurred, this may include the use of an external investigator.
31 The Merit Protection Commissioner or the APS Commissioner can inquire into and determine whether an APS employee has breached the Code of Conduct under the following circumstances:
32 In deciding whether to determine a matter themselves, or to appoint an appropriate investigator, the Conduct Case Manager will consider the following:
b the seriousness and/or sensitivity of the matter;
c whether they can be an independent and unbiased decision maker; and
d their availability to conduct the investigation in a timely manner.
33 Where a potential breach of the Code of Conduct is to be investigated, the procedure will be as follows:
(ii) where practicable and appropriate, information on how the matter has come to their attention;
(iii) the sanctions that may be imposed in the event that a breach is determined to have occurred;
(iv) information on the process, including investigation into the potential breach, any subsequent actions that may be taken, and who will be making the respective decisions;
(v) a copy of these procedures; and
(vi) if applicable, provide the name of the appointed investigator.
b The employee will be given an opportunity to make a statement, preferably in writing, within seven days in response to the matters that have been raised. This period may be extended depending on the particular circumstances of the case.
c The employee will be encouraged to exercise their right to make a written statement within the specified time. In addition, if the employee makes a written statement, they will also be given the opportunity to make an oral statement in relation to the suspected breach. Where the employee chooses to make an oral statement in addition to a written statement, it is envisaged that the oral statement would be for the purpose of expanding on or clarifying matters raised in the employee's written statement, but not limited to that purpose. Notes should be taken, agreed upon by both parties and form part of the supporting document for the investigation report.
d The Conduct Case Manager or investigator will undertake whatever inquiries they consider necessary in order to come to a conclusion, with as little formality, and as much expedition, as a proper consideration of the matter allows. Beyond ensuring that the employee is given every reasonable opportunity to be heard, the steps to be taken will depend very much on the circumstances of the case. If there is no real dispute as to facts there may be no more involved than to make a decision based on whatever has been reported (for example, by the line manager) and the employee's response. In other cases, where facts or circumstances are in dispute, options may include seeking statements from, or holding discussions with, other people. Written records must be made of any discussions.
e The Conduct Case Manager or investigator's role is to investigate the alleged breach of the Code of Conduct and recommend whether, on the balance of probabilities, a breach of the Code of Conduct has occurred. It is not their role to make any comments or recommendations about potential sanctions that may be applied to the employee should a breach be found.
f Where an investigator is making a recommendation to the Conduct Case Manager as to whether, on the balance of probabilities, there has been a breach of the Code of Conduct, a written report of the case will be made, including:
(ii) the basis for the recommendation, including key findings;
(iii) an outline of the evidence taken into account; and
h If the matter is being investigated and determined by the Conduct Case Manager, they will document a written report as detailed above, and include their determination as to whether, on the balance of probabilities, a breach of the Code of Conduct has occurred.
i If the Conduct Case Manager finds that there has been no breach of the Code of Conduct, they will inform the employee to that effect as soon as possible and provide a copy of the written record to the employee.
j If the Conduct Case Manager finds that there has been a breach of the Code of Conduct, they will provide a copy of the written record for consideration and decision as to an appropriate sanction(s), to one of the following Delegates:
(ii) where the employee involved is an SES employee: the Chief Operating Officer, Strategies, Services & Technology Group, or the Australian Statistician.
34 An employee has the right to be accompanied by a support person at any stage of these procedures. This may include a union representative or another person of their choice. The role of this person will be to provide support and advice to the employee. This role can involve:
b seeking clarification of points;
c assisting to articulate the employee's position; and
d clarifying procedures.
35 An employee has the right to be formally represented, including by a union representative. Where this occurs, a support person is unlikely to be required. A representative will be dealt with in good faith.
36 As a minimum, the Conduct Case Manager or Investigator will update all parties on any progress or delays during the investigation each 21 days. If the process allows, updates will be provided on a more regular basis. There is also an expectation that the employee undergoing a conduct investigation will keep the Conduct Case Manager or Investigator advised of any issues that would cause a delay in the process. If any of the parties are unclear as to the progress of the investigation, it is expected that they will seek early clarification from either the Conduct Case Manager or the Investigator.
37 Once a decision has been taken that the Code of Conduct has been breached, a further decision needs to be taken as to what, if any sanction(s) should be imposed. The available sanctions (s.15(1) of the Act) for current ABS employees are:
b deductions from salary, by way of a fine;
c reduction in salary;
d reassignment of duties;
e reduction in classification;
f termination of employment.
38 Where an employee moves after a finding of a breach but before application of a sanction, it is not necessary for a fresh investigation to be carried out. The new agency head can apply a sanction, in accordance with the new agency's procedures, on the basis of the losing agency's finding of breach. An agency head's power under section 15 of the PS Act to apply a sanction extends not only to imposing sanctions on employees in their agency, in respect of findings of breach made under that agency's Code of Conduct procedures, but also in respect of findings made under another agency's Code of Conduct procedures.
39 Once the Delegate has received a report from the Conduct Case Manager they will come to a decision as to what, if any, sanction(s) is appropriate in the circumstances.
40 In coming to a decision, the Delegate will have access to the full records of the inquiries undertaken by the Conduct Case Manager or the Investigator. In addition, it will be open to the Delegate to seek further information, including from the employee, to assist in coming to a decision. The Delegate will be able to access information on the employee's employment history, previous counselling and other records where that information will assist them to come to a decision as to what, if any, sanction(s) is appropriate in the circumstances.
41 It does not necessarily follow that a sanction(s) must be imposed in all cases. If a decision is taken in any particular case that no sanction should be imposed, it is likely that at least some form of counselling would be undertaken.
42 The appropriate Conduct Case Manager will be responsible for ensuring that any sanction decision is implemented.
Back to top
43 Where no breach of the Code of Conduct is found to have occurred, the employee will be informed accordingly as soon as possible, and given a copy of the record of the basis for that decision.
44 Where the Code of Conduct is found to have been breached, the Delegate will provide a copy of the report to the employee, inform the employee of the sanction being considered, and provide seven days for the employee to put forward reasons why the proposed sanction should not be imposed.
45 The Delegate may meet, or initiate telephone contact with the employee to discuss the matter before making their final decision.
46 The Delegate will then make their final decision as to the imposition of a sanction(s) or otherwise, and inform the employee in writing of that decision. The employee will also be informed of the review rights available (refer paragraphs 54 to 56 below).
47 Records relating to misconduct action will be placed on a Staff In Confidence file held in the People Management and Wellbeing Section. Where a breach is found, the existence of this misconduct file will be made apparent on the personal file of the employee involved by placing a cross-reference on the personal file.
48 In accordance with the Administrative Functions Disposals Authority, all records in relation to misconduct investigations which result in disciplinary action being taken will be retained for a period of five years, except for termination of employment actions which will remain on the public record. After the five years has passed, the misconduct record of the employee will be destroyed and the cross reference on the personal file removed. If a sanction of a reduction in salary or classification, reassignment of duties or a deduction from salary by way of a fine is imposed, records of that salary action will be retained on the employee's personal file for 75 years from their date of birth, or seven years after the last action, whichever is the later.
49 If an employee who has been found to have breached the Code of Conduct re-offends within five years, the records of earlier offences will be kept for a further period of five years.
50 Where a misconduct investigation into allegations of a breach of the Code of Conduct prove to be unfounded, unless otherwise requested by the employee, the records will be retained for a period of 18 months from the completion of the investigation.
51 Where no follow up investigation is made into allegations of a breach of the Code of Conduct (ie where the allegations are proved to be frivolous or vexatious), the records will be retained for a period of 18 months after the last action is completed.
52 Access to the misconduct files will be on a strictly need-to-know basis. Decision makers who are either determining whether a breach of the Code of Conduct has occurred or determining an appropriate sanction will be the only people to have access to these records outside of the People Management and Wellbeing Section. Upon request, the employee involved in the conduct action can access the records held by the People Management and Wellbeing Section.
53 Any records made as a result of a misconduct investigation will be managed in accordance with the requirements of the Information Privacy Principles of the Privacy Act 1988. Where appropriate, the employee's line management will be advised of the breach of the Code of Conduct and advised to take appropriate preventative steps to ensure future breaches do not occur, and to include details in referee reports where the breach is relevant to the duties of the position. The weighting of consideration of breaches will diminish over time. Further details are provided in paragraphs 52 to 56 of this guideline.
Back to top
54 An employee has the right to request a review of actions on decisions that relate to:
b a sanction imposed for breach of the Code of Conduct, excepting termination of employment.
55 ABS procedures for review of actions are contained in the Resolving Workplace Issues and Dispute Resolution guidelines.
56 If a sanction imposed is termination of employment, an employee may apply to the Fair Work Commission for a review of the decision on the grounds that the termination was harsh, unjust or unreasonable, or that it contravened provisions of the Fair Work Act 2009.
57 Where an employee has been convicted of a criminal offence, or has been convicted of an offence without a conviction being recorded, the issue is not so much the offence as such, but rather whether the facts and circumstances that gave rise to the offence might also raise a concern that the Code of Conduct might have been breached. In some cases (for example where the criminal offence is work-related) the linkage will be obvious, but in other cases there will need to be a careful and objective evaluation of the particular facts and circumstances.
58 Should an instance of this nature come to the attention of the Conduct Case Manager it will be handled according to the merits of the individual case. The principles of natural justice and procedural fairness will apply to all such cases.
59 In some cases it may be necessary to temporarily re-assign an employee to other duties, or to suspend the employee from duty altogether, pending inquiries into whether there has been a breach of the Code of Conduct.
60 The Public Service Regulations provide that an Agency Head may suspend an employee if the Agency Head believes on reasonable grounds:
b the employee's suspension is in the public, or the agency's interest.
61 Should an instance of this nature come to the attention of the Conduct Case Manager it will be handled according to the merits of the individual case. The principles of natural justice and procedural fairness will apply to all such cases. However, where urgent circumstances (for example a security risk) have necessitated re-assignment or suspension without prior notice, the employee will be given an opportunity as soon as possible after the action to make representations in relation to the action.
62 Where an employee whose conduct is under investigation asks for a referee report from their line manager (eg in connection with an application for promotion, transfer etc) and where the investigation may be relevant to the work related qualities required for the job, the line manager could indicate that there have been concerns as yet unresolved. To go beyond that could be seen as prejudging the situation, particularly where there is no clear determination of misconduct.
63 Where an investigation has concluded that the employee did not breach the Code of Conduct, it would be inappropriate for the referee to make any reference to the investigation, unless the investigation made findings relating to matters of performance or attitude which although not amounting to misconduct, may nevertheless reflect on the employee's suitability for the position in question.
62 If a breach of the Code of Conduct has been found to have occurred, and where the breach is relevant, the referee may include an outline of the circumstances surrounding the breach and comment on the relevance of the matter to the position.
64 Whether the investigation is in progress or has been concluded, an employee's conduct or misconduct record is relevant only to the extent that the circumstances have a bearing on the duties and the qualities required for the position for which the reference is being sought.
65 In all cases, the weight to be given to records of determined misconduct will diminish over time. Any information provided as part of a referees report must be managed in accordance with the requirements of the Information Privacy Principles of the Privacy Act 1988. Any information a referee may have in relation to an investigation must not be misused when providing referee reports. A misuse of this information may constitute a breach of the Code of Conduct, and as such could result in an investigation into an alleged breach of the Code of Conduct.
Back to top
67 If an ABS employee:
a is to move to another agency under section 26 of the Act (including on promotion), and is suspected of breaching the Code of Conduct; or
c is found to have breached the Code of Conduct and leaves the ABS before a decision about imposing a sanction is made; or
d becomes the subject of a conduct allegation and leaves the ABS before the matter is resolved, then information about the breach or allegation may be disclosed to any prospective or new employing APS agency.
68 It is the usual practice of the ABS to pass such information on to another agency where the ABS believes that the information might be relevant to employment related decisions which might need to be considered or made by the other agency, including:
b decisions as to whether or not an employee has breached the Code and whether or not they should be sanctioned for any Breach that is determined; and
c decisions as to whether or not an employee should be sanctioned in relation to a breach of the Code.
69 When passing misconduct records to a new agency following the movement of an employee, the ABS will ensure that the employing agency is aware of the record keeping guidelines that apply to the misconduct record and will advise the agency when any material is due to be destroyed. Similarly, when receiving files with misconduct records the ABS will ensure that it is aware of the record keeping requirements of the other agency providing the records, and will adhere to them as if they were the ABS's record keeping procedures.
70 Employee information concerning Code of Conduct matters is used and disclosed on a strict 'need to know' basis. ABS employees will have the opportunity to comment on the disclosure prior to release.
71 All non-ongoing employment contracts within the ABS are subject to the employee's continued satisfactory performance and conduct.
72 Should a non-ongoing employee fail to demonstrate a satisfactory level of conduct the likely outcome is termination of their contract.
73 Before deciding whether to terminate a non-ongoing contract, the Delegate will give the employee seven days to respond to any allegation of misconduct and also the opportunity to say why their employment should not be terminated. If satisfied with the explanation, the matter may go no further. If the explanation is not accepted, the Delegate will determine whether the contract should be terminated. Other sanctions available to the Delegate also include a fine and/or a reprimand.
74 The Delegate will inform the employee in writing of that decision.
Back to top
This page first published 23 July 2013