Procedures for determining a breach of the Code of Conduct (Staff Misconduct)

Introduction

The PS Act prescribes the standards of behaviour and conduct expected of all Australian Public Service (APS) employees through the APS Code of Conduct (the Code), the APS Values (the Values) and the APS Employment Principles (Employment Principles).

These procedures are also made publicly available in accordance with subsection 15(7) of the PS Act.

Application of procedures

In accordance with subsection 15(3) of the PS Act, the Chief Executive Officer (CEO) of the Australian Research Council (ARC), as the agency head, has established these procedures for determining: 

• whether a person who is an APS employee at the ARC, or who is a former APS employee who was employed at the ARC at the time of the suspected misconduct, has breached the Code in section 13 of the PS Act, 
• any sanction to be imposed on an APS employee at the ARC, in accordance with subsection 15(1) of the PS Act, where a breach of the Code has been determined.

In these procedures, a reference to a breach of the Code by a person includes a reference to a person engaging in conduct set out in subsection 15(2A) of the PS Act in connection with their engagement as an APS employee.

Not all suspected breaches of the Code may need to be dealt with by way of a determination. In particular circumstances, another way of addressing a suspected breach of the Code may be more appropriate.

In these procedures, powers afforded to the CEO (e.g. powers to suspend or reassign duties or determine a breach) may be delegated to other employees of the ARC through the Human Resources Delegations and Authorisation Instrument. 

Reporting a suspected breach

Employees are encouraged to report suspected breach of the Code verbally and/or in writing to their supervisor, a Harassment Contact Officers (HCOs), and /or the Chief People Officer. 

Breach decision-maker and sanction delegate

As soon as practicable after a suspected breach of the Code has been identified and the CEO, or a delegate authorised by the CEO, has decided to deal with the suspected breach under these procedures, the CEO (or delegate) will appoint a breach decision-maker to make a determination under these procedures. A separate suspension delegate and sanction decision maker may also be appointed. The responsibilities of each role are outlined below. 

Suspension Delegate

Where there are allegations of serious misconduct, a decision should be made about reassignment of duties under section 25 of the PS Act, or suspension from duty (with or without pay). 

The delegate determining whether an employee should be suspended from duties is referred to in these procedures as the suspension delegate and will hold a delegation of the powers and functions under section 28 of the PS Act and section 14 of the Public Service Regulations 2023 (Cth) (PS Regulations).

Where suspension from duties is being considered, appointing a separate delegate from the breach decision-maker is preferable.

Breach decision-maker

The role of the breach decision-maker is to determine in writing whether a breach of the Code has occurred.

The breach decision-maker may undertake the investigation, or seek the assistance of an external investigator. The investigator may investigate the alleged breach, gather evidence and make a report of recommended findings of fact to the breach decision-maker.

Sanction delegate 

The sanction delegate is the delegate under subsection 15(1) of the PS Act determining whether a sanction is to be imposed for any breach of the Code. 

Independence of decision-maker and delegates 

These procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter.

The breach decision-maker, suspension delegate (if any) and the sanction delegate must be, and must appear to be, independent and unbiased.

A decision-maker / delegate must advise the CEO in writing if they consider that they may not be independent and unbiased or if they consider that they may reasonably be perceived not to be independent and unbiased; for example, if they are a witness in the matter. 

Procedural fairness

All investigations into suspected breaches of the Code must be consistent with the principles of procedural fairness:

Reassignment of duties or suspension from duty

A current APS employee (including SES) who is under investigation for a suspected breach of the Code may be:

• reassigned to alternative duties, either for a temporary period or on an ongoing basis, under section 25 of the PS Act, or 
• suspended from duty by the suspension delegate under section 28 of the PS Act and section 14 of the PS Regulations.

In reassigning duties or suspending a current APS employee who is under investigation, the suspension delegate will:

• notify the current APS employee who is under investigation of the proposal, including reasons for this proposal; and
• give the person reasonable opportunity (usually, 7 calendar days) to respond before any decision to reassign or suspend is taken.

Sometimes urgent action may be required that will not allow for notification and response outlined above.  In such cases, the suspension delegate may invite the current APS employee who is under investigation to comment after the decision has been made. 

Depending on their response, the suspension delegate has the flexibility to consider alternative arrangements.

The determination process

The process for determining whether a person who is, or was, an APS employee in the ARC has breached the Code must be carried out with as little formality, and with as much expedition, as a proper consideration of the matter allows.

The process must be consistent with the principles of procedural fairness.

A determination may not be made in relation to a suspected breach of the Code by a person unless reasonable steps have been taken to inform the person of:

• the details of the suspected breach of the Code, including any subsequent variation of those details; and
• where the person is an APS employee, the sanctions that may be imposed on them under subsection 15 (1) of the PS Act; and
• give the person a reasonable opportunity to make a statement in relation to the suspected breach.

The statement may be a written or oral statement and should be provided within 7 calendar days or any longer period that is allowed by the decision-maker.

A person who does not make a statement in relation to the suspected breach is not, for that reason alone, to be taken to have admitted to committing the suspected breach.

For the purpose of determining whether a person who is, or was, an APS employee at the ARC has breached the Code, a formal hearing is not required.

Sanctions

The process for imposing a sanction must be consistent with the principles of procedural fairness.

If a determination is made that an APS employee at the ARC has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to:

• inform the employee of:
  • the determination of the breach of the Code; and
  • the sanction or sanctions that are under consideration in accordance with subsection15(1) of the PS Act; and
  • the factors that are under consideration in determining any sanction to be imposed; and
• give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration.

The statement may be a written or oral statement and should be provided within 7 calendar days or any longer period that is allowed by the sanction delegate.

Record of determination and sanction

If a determination is made in relation to a suspected breach of the Code by a person who is, or was, an APS employee in the Commission, a written record must be made of:

• the suspected breach; and
• the determination; and
• any sanctions imposed as a result of a determination that the employee has breached the Code; and
• if a statement of reasons was given to the person regarding the determination in relation to suspected breach of the Code, or, in the case of an employee, regarding the sanction decision, that statement of reasons or those statements of reasons.

Additional procedural requirement for current Senior Executive Service employees

If a current Senior Executive Service (SES) employee in the ARC is suspected of breaching the Code, the CEO as the Agency Head must comply with the requirements at section 64 of the Australian Public Service Commissioner's Directions 2022 (Directions) to consult, with either the APS Commissioner, or a delegate of the Commissioner for the purposes of this requirement: 

• on the process for determining whether the employee has breached the Code; and
• if considering imposing a sanction, before imposing the sanction.

Procedure when an employee seeks to move to another APS agency during investigation

If a current APS employee in the ARC seeks to move to another APS agency after they have been formally notified that they are suspected of breaching the Code but before the matter has been resolved, any move between APS agencies will generally be deferred, under subsections 42A(1) and 46(5) of the Directions, until: 

• after a decision has been made about whether or not the employee has breached the Code, or 
• it is decided that such a determination is not necessary.

Right of review

Under section 33 of the PS Act, all 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 ARC, while other decisions may need to be referred to the Merit Protection Commission (MPC).  More information on review rights can be located here: Chapter 11: Review rights | Australian Public Service Commission (apsc.gov.au).