Chapter 11 Managing Alleged Misconduct in DFAT

This chapter sets out how the department manages alleged misconduct by APS employees, LES employees and contractors, including how allegations of misconduct are investigated; how determinations of misconduct are made; and how and what sanctions may be imposed. For information about how the department manages and investigates disclosures made under the Public Interest Disclosure Act 2013 (PID Act), see the department's policy on handling public interest disclosures.

Staff should contact the Conduct and Ethics Unit if they require clarification on the contents of this Manual or if they are uncertain about the ethical implications of a proposed course of action.

11.1 How DFAT Manages Alleged Misconduct by APS Employees and former APS Employees

Scope of Guidelines

11.1.1 This section explains how the department manages alleged misconduct by APS employees. In this section (11.1), unless the contrary intention appears, a reference to an APS employee includes a reference to a current APS employee and to a former APS employee who is suspected of having breached the Code of Conduct while an employee of the department. Separate procedures for managing alleged misconduct by LES employees are detailed in section 11.2 of this Manual. There are separate procedures for the handling and investigation of disclosures made under the PID Act.

11.1.2 This section sets out formal procedures for determining whether an APS employee of the Department has breached the APS Code of Conduct, and what courses of action senior managers should follow if a breach is found to have occurred.

11.1.3 These procedures are in accordance with sections 15(3), 15(4), 15(5) and 15(7) of the Public Service Act 1999, which require the department to establish, and make publicly available, written procedures for determining whether an APS employee in the department has breached the APS Code of Conduct. These procedures are also in accordance with the Australian Government’s Investigation Standards (AGIS) and are consistent with the Australia-New Zealand risk management standard AS/NZS 4360.

11.1.4 These procedures may also be applied to: conduct referred to in section 15(2A) of the Public Service Act 1999, namely providing false or misleading information in connection with engagement as an APS Employee; alleged breaches of the APS Values or Employment Principles; and to conduct outside the workplace if there is a real connection between the employee’s conduct and his or her employment by the department. This is in accordance with the APS Code of Conduct (section 13(11) of the Public Service Act 1999), which states that “An APS employee must at all times behave 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.”

11.1.5 These procedures may be applied following an allegation of a breach of the APS Code of Conduct that is reported by an APS employee.

11.1.6 These procedures may be applied where an alleged breach of the APS Code of Conduct by an APS employee comes to light in the course of another departmental investigation of alleged misconduct.

11.1.7 These procedures may be applied in cases where an APS employee is found to have made an allegation about the behaviour or actions of another staff member which is knowingly frivolous, false or malicious. This is in accordance with the APS Code of Conduct (section 13(1) of the Public Service Act 1999), which states that “An APS employee must behave honestly and with integrity in connection with APS employment.”

11.1.8 These procedures apply to all APS employees of the department in Australia and overseas – including ongoing and non-ongoing APS employees, those on probation and those on secondment from other APS agencies.

11.1.9 The principles set out in these procedures shall also apply for investigating and determining whether a contractor in the department has breached the APS Code of Conduct. In consultation with FAS CMD, the delegate responsible for the contract shall act as the sanctioning officer in respect of a contractor determined to have breached the APS Code of Conduct.

11.1.10 These procedures may also be applied to alleged breaches of the DFAT Code of Conduct for Overseas Service. This is because alleged breaches of the DFAT Code of Conduct for Overseas Service are regarded as alleged breaches of the APS Code of Conduct (section 13(12) of the Public Service Act 1999), which states that “an APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.”

11.1.11 Members of the household of an APS employee who accompany the employee on posting are private persons not covered directly by either the APS Code of Conduct or the DFAT Code of Conduct for Overseas Service. However, inappropriate personal behaviour by household members,as outlined in the DFAT Code of Conduct for Overseas Service, may lead to review and possibly termination of an APS employee's posting. In such an event, no formal responsibility shall be attributed to the APS employee by reason only of the behaviour of the member of his or her household.

11.1.12 These procedures may be applied when an APS employee’s performance has been assessed as unsatisfactory for reasons or causes clearly within the employee’s control – for example, if an APS employee is unwilling or refuses to comply with lawful and reasonable instructions. This is in accordance with the APS Code of Conduct (see sections 13(2) and 13(5) of the Public Service Act 1999), which states that “an APS employee must act with care and diligence in connection with APS employment” and that “an APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.”

The department's approach

11.1.13 The department takes misconduct very seriously, and endeavours to investigate alleged misconduct promptly and fairly.

11.1.14 Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the APS and thereby maintaining public confidence in public administration, rather than aiming to punish the employee per se.

11.1.15 Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to others and to confirm that misconduct is not tolerated in the department. Sanctions may not be imposed on former APS employees.

11.1.16 Because the department seeks to maintain both balance and proportion in managing alleged breaches of the APS Code of Conduct, not all alleged breaches of the APS Code of Conduct require formal investigation and determination under these procedures.

11.1.17 Depending on its nature and severity, an alleged breach of the APS Code of Conduct by an APS employee may be approached as a performance management issue and managed through a process of informal counselling. Managers need to consider each case of unsatisfactory behaviour on its merits to determine whether it should be best handled through misconduct or performance management frameworks.

11.1.18 With minor misconduct, or in cases involving personality clashes, other approaches such as using the performance management system or using alternative forms of dispute resolution (such as mediation or counselling) may be the most effective way to manage the behaviour.

11.1.19 Where a suspected breach appears to be a minor infringement and/or atypical behaviour, it may be sufficient to warn the employee about his or her conduct, noting that any further similar conduct could lead to formal misconduct action. In such cases, managers should be careful not to imply that there has been any formal determination of a breach of the APS Code of Conduct, and should make a diary note of the incident and the counselling discussion.

11.1.20 If an employee's unsatisfactory performance is due to his or her incapacity to perform a given role, this situation should generally be managed through the underperformance provisions of the department's performance management system.

Summary of the misconduct procedures

11.1.21 When unsatisfactory behaviour by an APS employee is deemed by a manager to warrant formal management under misconduct procedures, there are up to three stages to be followed:

In all cases, the investigating officer, the determining officer and the sanctioning officer are different individuals.

11.1.22 A more detailed explanation of these three stages is provided in paragraphs 11.1.34 - 11.1.45 of this Manual.

Procedural fairness and natural justice

11.1.23 Section 15(4) of the Public Service Act 1999 provides that the department’s procedures must comply with the basic procedural requirements set out in the Commissioner’s Directions and have due regard to procedural fairness.

11.1.24 The Commissioner’s Directions note that, unless the contrary intention appears, a reference to an APS employee in an agency includes a reference to a former APS employee who is suspected of having breached the Code of Conduct while an employee in the Agency, and then go on to state that:

6.3 Employee must be informed that a determination is being considered

A determination may not be made in relation to a suspected breach of the Code of Conduct by an APS employee unless reasonable steps have been taken to:

  1. inform the employee of:
    1. the details of the suspected breach (including any subsequent variation of those details); and
    2. the sanctions that may be imposed on the employee under subsection 15(1) of the Act; and
  2. give the employee a reasonable opportunity to make a statement in relation to the suspected breach.

6.4 Employee must be informed before a sanction is imposed

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

  1. inform the employee of:
    1. the determination; and
    2. the sanction or sanctions that are under consideration; and
    3. the factors that are under consideration in determining any sanction to be imposed; and
  2. give the employee a reasonable opportunity to make a statement in relation to sanctions under consideration.

6.5 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that:

  1. the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased; and
  2. the person who determines any sanction to be imposed is, and appears to be, independent and unbiased.

6.6 Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

6.7 Record of determination and sanctions

If a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, a written record must be made of:

  1. the suspected breach; and
  2. the determination; and
  3. any sanctions imposed as a result of a determination that the employee breached the Code of Conduct; and
  4. if a statement of reasons was given to the employee – the statement of reasons.

6.8 Procedure when an employee is to move to another Agency during an investigation

(1) This clause applies if:

  1. an ongoing APS employee in an Agency is suspected of having breached the Code of Conduct; and
  2. the employee has been informed of the matters mentioned in paragraph 6.3(a); and
  3. the matter has not yet been resolved; and
  4. a decision has been made that, apart from this clause, would result in the movement of the employee under section 26 of the Act to another Agency (including on promotion).

(2) Unless the original Agency Head and the new Agency Head agree otherwise, the movement (including on promotion) does not take effect until the matter is resolved.

(3) For this clause, the matter is taken to be resolved when:

  1. a determination is made, as mentioned in clause 6.3; or
  2. it is decided that a determination is not necessary.

Furthermore, in the context of decisions associated with suspected misconduct, procedural fairness generally requires that:

11.1.25 Other administrative law principles must be considered. It is important that decision makers understand that a finding that an employee has breached the Code may be invalid if there are flaws in the decision-making process.

Standard of proof

11.1.26 The standard of proof applicable to findings of fact or findings that the Code has been breached is the civil standard of proof — that is, findings should be based on the conclusion that it is more probable than not that the matter suspected to have occurred did in fact occur.

11.1.27 Before reaching a finding, the decision maker needs to have considered the seriousness of the matter under consideration and the gravity of the adverse consequences which might flow to the employee. In that sense the civil standard of proof increases in accordance with the seriousness of the matter under consideration1.

How these procedures are applied

11.1.28 These procedures must be followed to ensure procedural fairness and uphold the principles of natural justice.

11.1.29 Formal hearing not required

11.1.29.1 For the purpose of determining whether an APS employee in the Department of Foreign Affairs and Trade has breached the Code of Conduct, a formal hearing is not required. The process for determining whether an APS employee has breached the Code of Conduct should be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

11.1.30 Information to be given to employee before determination is made

11.1.30.1 Before a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee in the Department of Foreign Affairs and Trade, the employee must:

  1. be informed of:
    1. the details of the suspected breach of the Code of Conduct (including any variation of those details);
    2. the sanctions that may be imposed on the employee under section 15(1) of the Public Service Act 1999 (including any limitations on that power contained in regulations made for the purposes of section 15(2) of the Public Service Act 1999); and

  2. be given reasonable opportunity to make a statement, in writing, in relation to the suspected breach within 7 days or any longer period as is allowed.

11.1.30.2 If the employee makes a written statement within 7 days (or, if allowed, any longer period) of being given the opportunity to do so, the employee must also be given the opportunity to make an oral statement in relation to the suspected breach.

11.1.30.3 An employee who does not make a written statement in relation to the suspected breach is not, only for that reason, to be taken to have admitted committing the suspected breach.

11.1.31 Person making determination is to be independent and unbiased

11.1.31.1 The Secretary must take reasonable steps to ensure that the person who determines whether an APS employee in the department has breached the Code of Conduct is, and appears to be, independent and unbiased.

11.1.31.2 In particular, a person must not determine whether the employee has breached the Code of Conduct if the person has previously made a report in relation to any of the matters suspected of constituting a breach by the employee of the Code of Conduct.

11.1.32 Action that may be taken if breach found to have occurred

11.1.32.1 If a determination is made that an APS employee in the Department of Foreign Affairs and Trade has breached the Code of Conduct, the employee may be counselled or a sanction may be imposed on the employee under section 15(1) of the Public Service Act 1999.

11.1.32.2 If a sanction is imposed on the employee, the employee must be given a written statement setting out the reasons for the determination and the imposition of the sanction.

11.1.33 Record of determination

11.1.33.1 After a determination in relation to a suspected breach of the Code of Conduct by an APS employee in the Department of Foreign Affairs and Trade is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.

Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

Investigation

11.1.34 The investigation process is where an investigating officer formally examines an allegation of misconduct by an APS employee. The Deputy Secretary responsible for CMD or FAS CMD appoints the investigating officer. The investigating officer collects evidence – including statements and interviews – makes administrative inquiries, and prepares an investigation report for the delegate. The investigation report includes recommendations about whether the alleged misconduct should be subject of a formal determination, or whether no further action should be taken due to a lack of evidence. (Note that the Australian Public Service Commissioner and the Merit Protection Commissioner can undertake inquiries into Code breaches by APS employees and former APS employees in limited circumstances.)

Determination

11.1.35 Where alleged misconduct becomes the subject of a formal determination, a determining officer will be appointed to determine whether or not a breach of the APS Code of Conduct has occurred. The Secretary has delegated to FAS CMD responsibility for appointing the determining officer. FAS CMD will take reasonable steps to ensure that the determining officer is, and appears to be, independent and unbiased. In particular, the determining officer will not have previously made a report in relation to any of the matters constituting an alleged breach of the APS Code of Conduct by the APS employee.

11.1.36 The determining officer reviews the investigation report, collects further evidence as required (including written and oral statements from the APS employee accused of misconduct), and makes an independent determination about whether or not a breach of the APS Code of Conduct has occurred. The determining officer will only consider the incident in question to make that determination. The determination process will be carried out with as little formality and as much expedition as a proper consideration of the matter allows. Consistent with the principles of administrative law, the standard of proof for determining whether a breach of the APS Code of Conduct has occurred is on the balance of probabilities. This means that the determining officer must be satisfied that the breach of the APS Code of Conduct is more likely to have occurred than not.

11.1.37 After making a determination about the alleged misconduct, the determining officer prepares a determination report for the delegate. The determination report states whether or not the APS employee has been found to have breached the APS Code of Conduct, sets out the reasoning for the determination, and refers to the evidence or other material on which the findings were based.

11.1.38 If a determination is made that the APS employee has not breached the APS Code of Conduct, the determining officer (following consultation with the delegate) will so advise the employee in writing.

Sanction

11.1.39 Sanctions are intended to be proportionate to the nature of the breach, provide a clear message to the relevant employee that their behaviour was not acceptable, and act as a deterrent to the employee and others.

11.1.40 A sanction may only be imposed on an APS employee who has been found by a determining officer to have breached the APS Code of Conduct. If a determination is made that an APS employee has breached the APS Code of Conduct, he or she may be counselled, or one or more sanctions may be imposed under section 15(1) of the Public Service Act 1999.  

11.1.41 Where such a determination has been made, the Secretary or a delegate of the Secretary may impose one or more of the following sanctions on the employee:

11.1.42 There is no provision in the Public Service Act 1999 for any other form of sanction, but other management action may be warranted in order to reduce the risk of further misconduct (such as restricting an employee's access to the internet following a finding of internet misuse). Any such action should clearly be cast as management action and not as a sanction.

11.1.43 The Secretary has delegated to the Deputy Secretary responsible for CMD and to FAS CMD the role of sanctioning officer with responsibility for imposing sanctions, if appropriate. In the normal course of events, FAS CMD will be the sanctioning officer. When deciding on an appropriate sanction, the sanctioning officer may consider the employee's past behaviour.

11.1.44 A determination that an APS employee has breached the APS Code of Conduct does not necessarily mean that a sanction must be imposed. The sanctioning officer may decide that other action may be appropriate. For example, the employee may be counselled, with a view to preventing a recurrence of the misconduct in question. The sanctioning officer may also determine that although substantiated, the nature of the employee's breach of the APS Code of Conduct is not serious enough to warrant further action.

11.1.45 If the sanctioning officer imposes a sanction on the APS employee, the sanctioning officer must provide him or her a written statement which sets out the reasons for the determination and the imposition of the sanction. If the sanctioning officer decides not to impose a sanction on the employee, the sanctioning officer must provide him or her a written statement which sets out the reasons for the determination and advises that no sanction has been imposed. If the sanctioning officer decides not to impose a sanction on the employee, the sanctioning officer must provide him or her a written statement which sets out the reasons for the determination and advises that no sanction has been imposed. This statement will be placed on the APS employee's personnel file. A copy of this statement will also be placed on an investigation file held by the Conduct and Ethics Unit.

Disclosing personal information about an employee obtained during the course of a misconduct investigation, including disclosure to complainants and other agencies

Note: Advice on privacy law, and in particular on whether personal information may be disclosed to other parties, should be sought from the Domestic Legal Branch (DLB) prior to the disclosure of any personal information.

11.1.46 Section 72E of the Public Service Act 1999 says the regulations may authorise the use or disclosure, in specific circumstances, of personal information (within the meaning of the Privacy Act 1988) and may impose restrictions on the collection, storage, access, further use or further disclosure of personal information used or disclosed under those regulations.

11.1.47 Personal information

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

(b) The Department of Foreign Affairs and Trade will ensure that, where appropriate, necessary and reasonable, personal information about an employee under investigation will remain confidential.

11.1.48 Sensitive information

(a) Sensitive information is a part of personal information and is defined in section 6 of the Privacy Act 1988 as "information or an opinion about an individual's racial or ethnic origin or political opinions or membership of a political association or religious beliefs or affiliations or philosophical beliefs or membership of a professional or trade association or membership of a trade union or sexual preferences or practices or criminal record that is also personal information or health information about an individual or genetic information about an individual that is not otherwise health information".

(b) Special care should be taken in the handling of sensitive information. Sensitive information should generally not be disclosed to a third party without the express consent of the individual concerned.

11.1.49 Use and disclosure of personal information - the Public Service Regulations 1999

Regulation 9.2 of the Public Service Regulations 1999 says an Agency Head may use personal information in the possession, or under the control, of the Agency Head, if the use is necessary for, or relevant to, the performance or exercise of the employer powers of the Agency Head. ‘Employer powers’, for an Agency Head, is defined to mean the rights, duties and powers of the Agency Head under the Public Service Act 1999.

Further, an Agency Head may disclose personal information in the possession, or under the control, of the Agency Head if the disclosure is necessary for, or relevant to:

Employees should consult regulation 9.2 for further information about what the Merit Protection Commissioner and Australian Public Service Commissioner can do with personal information.

11.1.50 Use and disclosure of personal information – DFAT policies

(a) Disclosure of personal information to employees — During the course of a Code of Conduct investigation, or after the investigation is complete, in accordance with the principles of procedural fairness, the employee who is the subject of an investigation may be provided with personal information about an individual who is a party to the investigation. This may include the complainant and any witnesses to the investigation. Disclosure of information about the complainant and any witnesses to the respondent employee or others should be done in accordance with the department's obligations under the Information Privacy Principles (IPPs) which are set out in section 14 of the Privacy Act 1988.

(b) Disclosure of personal information to other parties — During the course of a Code of Conduct investigation, or after the investigation is complete, personal information about an employee under investigation may also, where necessary, appropriate and reasonable, be disclosed in accordance with the department's obligations under the Information Privacy Principles (IPPs) to other parties including:

Note: IPP 2 deals with collection of personal information by APS agencies who must take steps to tell individuals why they are collecting personal information, what laws give them authority to collect it, and to whom they usually disclose it (this is normally done by what is called an IPP2 notice) and IPP 11 deals with limits on disclosure of personal information. In effect, IPP11 may give the Department of Foreign Affairs and Trade the capacity to disclose Code of Conduct information where employees have been advised by an IPP 2 notice of its privacy policy in relation to such information.

11.1.51 Opportunity to make case as to why information should not be disclosed

(a) Where the department is considering disclosing personal information about an employee to another person, body or agency, the employee will be advised in writing and given the opportunity to make a case prior to the information being disclosed, as to why their personal information should not be disclosed. This does not apply where the department is considering disclosing personal information about an employee to relevant Australian law enforcement agencies (see section 11.1.72)

(b) The employee will have at least 7 days to provide a case, in writing, to the investigating officer.

11.1.52 Department may disclose general information

(a) Prior to disclosing information about the outcome of a Code of Conduct investigation, the department will have due regard to the Privacy Act 1988, including determining whether personal information will be used or disclosed and in what circumstances.

(b) General information containing no personal information may be disclosed to others where the department considers it necessary, appropriate and reasonable to do so.

11.1.53 Advising complainants of outcome of Code of Conduct investigation

11.1.53.1 Complainants have a legitimate interest in knowing that alleged misconduct has been addressed. They should be given sufficient information to provide assurance that the department:

11.1.53.2 In addition, informing complainants about the outcome of an investigation may prevent further claims, complaints or litigation (including requests for review, whistleblower reports and applications under the Freedom of Information Act 1982), as the complainant is more likely to be satisfied that the matter has been dealt with appropriately.

11.1.53.3 Generally, the department may inform complainants of the outcome of an investigation without releasing personal information about the APS employee. In most cases, it should be possible to give a complainant adequate information about the way their complaint has been handled without disclosing personal information about an employee.

11.1.53.4 Disclosure of personal information under IPP 11 regarding misconduct should be managed in such a way that the employee's identity will not be revealed where it is not necessary, appropriate and reasonable to do so. This is particularly important where the complainant and the individual under investigation are both employed in the department.

11.1.53.5 However, where an APS employee has been specifically named by the complainant, the complainant will invariably be aware of some personal information about that employee, in particular their identity. Nevertheless, this does not mean that any additional personal information about the employee (such as any sanction imposed) can or should be disclosed to the complainant and care should be taken not to do so.

11.1.53.6 When considering how and to whom information may be released, the department needs to take into account the potential impact on a person's reputation, right to privacy and safety. The department also needs to consider whether providing the information to a third party, including the complainant, would be disproportionate to the nature and seriousness of the misconduct.

11.1.53.7 In any case, complainants are not entitled to a copy of the relevant investigation report, determination report or parts thereof. That said, they may, if they wish, apply for a copy of the report under the Freedom of Information Act 1982 in which case their request would be processed under the relevant procedures. Where the complainant is not satisfied with the outcome of the department’s investigation, the complainant may refer the report to the Australian Public Service Commissioner, a person authorised by the Australian Public Service Commissioner, the Merit Protection Commissioner, or a person authorised by the Merit Protection Commissioner.

Suspension and Temporary Reassignment of Duties

11.1.54 Action to temporarily re-assign duties, or to suspend, may be taken at any time prior to, or during, the process of determining whether a breach of the Code has occurred and applying a sanction.

In exercising these powers, it is important for the decision maker not to prejudge, and not to be seen to prejudge, whether misconduct has occurred. Re-assignment or suspension will not be used as sanctions.

11.1.55 The factors to take into account in reaching a decision to re-assign duties or suspend an employee are whether it would be in the public or the department's interests to do so. Relevant considerations might include, for example, that there is:

11.1.56 The usual practice is to inform the employee suspected of misconduct, in writing, of the Department's intention to re-assign their duties or to suspend them and the reasons for this proposal, and to give the employee a reasonable opportunity to respond before the decision is taken.

However, in some circumstances, it may be appropriate for the re-assignment or suspension to come into effect immediately, without first inviting the employee to comment.

11.1.57 An employee may:

  1. in the case of re-assignment, comment subsequently; or
  2. in the case of suspension, seek a review of the decision.

11.1.58 An employee may be suspended with or without pay.

11.1.59 If without pay, the employee may be able to access paid leave entitlements (recreation or long service leave) or seek outside employment. A suspension without pay should not be for longer than 30 days, except in exceptional circumstances, such as where:

11.1.60 Continuing suspension must be reviewed at reasonable intervals.

11.1.61 Suspension must immediately end when the Secretary or a delegate of the Secretary no longer believes on reasonable grounds that the employee has, or may have, breached the Code, or that it is in the public, or the department's interests to continue the suspension. In addition, suspension must cease as soon as any sanction is imposed for the relevant breach of the Code.

11.1.62 The Secretary has delegated to the Deputy Secretary responsible for CMD and to FAS CMD the power to suspend (with or without remuneration) or temporarily re-assign an APS employee accused of misconduct pending any determination of the case. In exercising these powers, the relevant delegate will pay due regard to procedural fairness in accordance with section 28 of the Public Service Act 1999 and regulation 3.10 of the Public Service Regulations 1999. A decision to suspend or temporarily re-assign an employee is a reviewable decision under section 33 of the Public Service Act 1999 and under the Administrative Decisions (Judicial Review) Act 1977.

Can I Appeal a Determination or a Sanction?

11.1.63 Non-SES employees who have been found to have breached the Code of Conduct and who wish to challenge either the determination that a breach has occurred and/or the sanction imposed on them may apply for a review under section 33 of the Public Service Act 1999. Primary review of a determination that an employee has breached the Code of Conduct or of a sanction imposed for a breach of the Code of Conduct must be made to the Merit Protection Commissioner (regulation 5.24 of the Public Service Regulations 1999 refers). Any application made must be in writing within 60 days from either the determination of the breach or the imposition of the sanction. Non-SES employees may also seek a review of either the determination that a breach of the Code of Conduct has occurred and/or the sanction imposed in court under the Administrative Decisions (Judicial Review) Act 1977 or common law judicial review.

11.1.64 Non-SES employees are not entitled to seek a review of a sanction which consists of termination of employment under section 33 of the Public Service Act 1999. In the event of termination of employment, non-SES employees may seek relief from either Fair Work Australia under the unfair dismissal provisions of the Fair Work Act 2009, or by the courtseither under the general protection (unlawful termination) provisions of the Fair Work Act 2009, the Administrative Decisions (Judicial Review) Act 1977, common law judicial review or common law wrongful dismissal.

11.1.65 SES employees may seek a review of either a determination of a breach of the Code of Conduct or of a sanction imposed for a breach of the Code of Conduct in court under the Administrative Decisions (Judicial Review) Act 1977 or common law judicial review. SES employees may also seek relief in the event of termination of employment in the same manner as non-SES employees under paragraph 11.1.67.

11.1.66 The making of an application for review does not operate to stay the action.

11.1.67 In general terms, a review by the Merit Protection Commissioner in such cases would address the following issues:

11.1.68 The department is not bound to accept the Merit Protection Commissioner's recommendation(s) in a review case but, if it does not accept them, must advise the applicant and the Merit Protection Commissioner of the reasons for its decision.

Relationship to Criminal Charges

11.1.69 The department may decide to refer alleged criminal behaviour by an APS employee to relevant Australian law enforcement authorities, who may in turn decide to pursue criminal charges against the employee. Referring alleged criminal behaviour in this way does not preclude the department from simultaneously applying these procedures (section 11.1 of this Manual).

11.1.70 In cases where a matter is subject to both criminal and departmental misconduct processes, it may be appropriate for the department to delay the determination on the alleged misconduct until the decision of the court on the criminal matter is known.

11.1.71 If it comes to light that an APS employee, through his or her private actions, has been charged with a criminal offence, and

it may be appropriate to apply these procedures. It may be also appropriate to suspend the employee until the decision of the court is known. An APS employee who has been charged with a criminal offence must advise Diplomatic Security and Property Branch of this.

Considering misconduct in selection process including referee reports

11.1.72 The selection process is a key means by which an APS agency gains relevant information regarding eligibility and suitability from job applicants.

11.1.73 As candidates are not bound to identify any problems if not specifically asked, they should be specifically asked for relevant information on their previous work history. Having a work history that includes a finding that the employee has breached the Code or is being investigated for a suspected breach does not automatically exclude that employee from consideration in a selection process.

11.1.74 It is a common practice for APS agencies to ask applicants seeking promotion or movement at level to obtain a referee report from their current supervisor or manager. Referees should avoid any comment in a referee report that is unrelated to the employee's work performance and work-related qualities relevant to the selection criteria for the job.

11.1.75 If an applicant is involved in a misconduct action that has yet to be finalised, in assessing the applicant's suitability a selection committee should not prejudge the outcome of any investigation. While an investigation is still underway, referees should, if relevant, indicate at most that there are as yet unresolved concerns.

11.1.76 When deciding the relevance of a previous breach of the Code to a selection process, selection committees and referees should consider the following factors:

11.1.77 In all cases, the weight to be given to past proven misconduct will diminish over time.

Recordkeeping and access to records2

11.1.78 The National Archives of Australia Administrative Functions Disposal Authority of February 2000 (Disposal Authority) provides information on the retention of records and sets out minimum periods for which various classes of records relating to counselling and misconduct matters should be retained. Full details can be accessed through the National Archives of Australia website: Records management - National Archives of Australia. This is a summary of the main relevant provisions:

Description of records Disposal action
Records documenting allegations or investigations of misconduct which do not result in disciplinary action Destroy 18 months after action completed
Records documenting counselling for minor breaches of the Code Destroy 2 years after action completed
Records documenting investigations of misconduct which result in disciplinary action being taken Destroy 5 years after action completed
Records documenting investigations of misconduct and where allegations are proved to be unfounded and where the employee has requested the retention of the records Destroy 75 years after the date of birth of the employee or 7 years after last action, whichever is later, or when requested by the employee

11.1.79 It should be noted that the Disposal Authority sets out minimum retention periods for such documents and provides a useful benchmark of contemporary APS norms as to the minimum length of time that previous conduct is regarded as still relevant in making later decisions about an employee. However, the decision whether records should be kept for a period longer than the minimum established by the Disposal Authority rests with each APS agency and the department may choose to keep its records for a longer period.

11.1.80 Records relating to misconduct action are kept separate from an employee's personal file but a misconduct file's existence is made apparent on the employee's personal file (for example, by cross-referencing).

11.1.81 The misconduct file is classified "In Confidence" and held in secure storage. Access is allowed only on a strict "need to know" basis.

11.1.82 Material placed on a misconduct file includes:

11.1.83 If an applicant is involved in a misconduct action that has yet to be finalised, in assessing the applicant's suitability a selection committee should not prejudge the outcome of any investigation. While an investigation is still underway, referees should, if relevant, indicate at most that there are as yet unresolved concerns.

11.1.84 When deciding the relevance of a previous breach of the Code to a selection process, selection committees and referees should consider the following factors:

11.1.85 In all cases, the weight to be given to past proven misconduct will diminish over time.

Back to top

11.2 How DFAT Manages Alleged Misconduct by LES Employees

What do I need to do?

HOMs/HOPs

About These Procedures

11.2.1 These procedures set out better practice for how the Department of Foreign Affairs and Trade manages alleged breaches of a post's LES Code of Conduct and determines whether an LES employee has breached a post's LES Code of Conduct.

11.2.2 These procedures are consistent with the department's procedures for determining whether an APS employee in the department has breached the APS Code of Conduct, as set out in section 11.1 of this Manual.

11.2.3 The requirements of local employment law will differ from country to country and from jurisdiction to jurisdiction. Local employment law should be considered in the application of these procedures and may take precedence when it conflicts with these procedures. HOMs/HOPs should seek local legal advice and must consult with CEU and Post and LES Management Issues Section (PLI/CMD) before applying these procedures, and in particular before suspending an LES employee accused of misconduct and before imposing a sanction on an LES employee. Local legal advice should be obtained in writing and a copy should be forwarded to CEU and PLI.

11.2.4 The department takes misconduct very seriously. At the same time, the department seeks to maintain balance and proportion in managing alleged breaches of a post's LES Code of Conduct. For this reason, not all alleged breaches of a post's LES Code of Conduct may require formal investigation and determination under these procedures. Depending on their nature, alleged breaches of a post's LES Code of Conduct may be approached as a performance management issue and managed through a process of informal counselling. For example, if a manager becomes aware of a clear instance of a minor infringement of the LES Code of Conduct by an LES employee, it may be sufficient for the manager, following consultation with HOM/HOP, to counsel the employee about his or her conduct, noting that further infringements could lead to formal action under these procedures. In such cases, managers should be careful not to imply that there has been any formal determination of a breach of the LES Code of Conduct, and should make a diary note of the incident and the counselling discussion.

How These Procedures are Applied

11.2.5 These procedures apply to all LES employed by DFAT working at DFAT-managed posts, including LES employed by DFAT but working for other agencies. These procedures do not apply to Austrade LES, as they are not engaged by the department. In the case of alleged misconduct by LES employed by DFAT but working for other agencies, DFAT may assist the relevant agency, where necessary and on a cost recovery basis, to manage the alleged misconduct and, if so, will apply these procedures.

11.2.6 These procedures may be applied following an allegation of a breach of a post's LES Code of Conduct by LES employee. Sections 10.1-10.2 of this Manual set out how alleged misconduct should be reported at posts.

11.2.7 These procedures may also be applied where an alleged breach of a post's LES Code of Conduct by an LES employee comes to light in the course of a departmental investigation of alleged misconduct by another staff member.

11.2.8 These procedures may be applied to conduct outside the workplace if there is a real connection between the conduct and its effect on the post. This is in accordance with the standard LES Code of Conduct, which states that "an employee's personal behaviour, including his or her behaviour outside office hours, must not compromise the good reputation of Australia or the post."

11.2.9 These procedures may be applied when an LES employee’s performance has been assessed as unsatisfactory for reasons or causes clearly within the employee’s control – for example, if an LES employee is unwilling or refuses to comply with lawful and reasonable instructions. This is in accordance with the standard LES Code of Conduct, which states that an LES employee “must act with care and diligence in connection with his or her employment” and “must comply with any lawful and reasonable direction given by a person [at the post] who has the authority to give the direction.” However, if an employee’s unsatisfactory performance is due to their incapacity to perform their role, the performance would generally be managed through the underperformance provisions of the post’s performance management system.

11.2.10 These procedures may be applied in cases where an LES employee is found to have made an allegation about the behaviour or actions of another staff member which is knowingly frivolous, false or malicious. This is in accordance with the standard LES Code of Conduct, which states that an LES employee “must behave honestly and with integrity in connection with his or her employment.”

11.2.11 At any stage of investigation, determination and sanctioning process under these procedures, FAS CMD may assume direct oversight of the process and assume the roles and responsibilities set out for HOM/HOP in these procedures.

Managing Alleged Misconduct – A Brief Overview

11.2.12 There are up to three stages in the formal management of alleged misconduct by LES employees, summarised as follows:

It is better practice that the investigating officer, the determining officer and the sanctioning officer are different individuals.

Procedural Fairness and Natural Justice

11.2.13 The requirements of procedural fairness and natural justice will differ from country to country and from jurisdiction to jurisdiction. As a guide, affording procedural fairness and natural justice may include:

Suspension and Temporary Reassignment of Duties

11.2.14 Local employment law may allow HOM/HOP to suspend an LES employee accused of breaching the post's LES Code of Conduct (with or without remuneration) or temporarily reassign him or her to other duties at any stage of these procedures, including before any determination is made that he or she has breached the post's LES Code of Conduct. HOMs/HOPs should seek local legal advice and must consult with CEU and PLI before suspending an LES employee accused of misconduct.

Investigation

11.2.15 The investigation process is where an investigating officer formally examines an allegation of misconduct by an LES employee. Following consultation with CEU, HOM/HOP appoints the investigating officer. The investigating officer collects evidence – including statements and interviews – makes administrative inquiries, and prepares an investigation report for HOM/HOP. The investigation report includes recommendations about whether the alleged misconduct should be subject of a formal determination, or whether no further action should be taken.

Determination

11.2.16 Where alleged misconduct becomes the subject of a formal determination, HOM/HOP following consultation with CEU appoints a determining officer to determine whether or not a breach of the LES Code of Conduct has occurred. HOM/HOP will take reasonable steps to ensure that the determining officer is, and appears to be, independent and unbiased. This may be especially important at smaller posts. In particular, the determining officer will not have previously made a report in relation to any of the matters constituting an alleged breach of the post's LES Code of Conduct by the LES employee.

11.2.17 The determining officer reviews the investigation report, collects further evidence as required (including written and oral statements from the LES employee accused of misconduct), and makes an independent determination about whether or not a breach of the LES Code of Conduct has occurred. The determining officer will only consider the incident in question to make that determination. The determination process will be carried out with as little formality and as much expedition as a proper consideration of the matter allows. Consistent with the principles of Australian administrative law, the standard of proof for determining whether a breach of the post's LES Code of Conduct has occurred is on the balance of probabilities. This means that the determining officer must be satisfied that the breach of the LES Code of Conduct is more likely to have occurred than not.

11.2.18 After making a determination about the alleged misconduct, the determining officer prepares a determination report for HOM/HOP which states whether or not the LES employee has been found to have breached the LES Code of Conduct and sets out the reasoning for the determination.

11.2.19 If a determination is made that the LES employee has not breached the LES Code of Conduct, HOM/HOP following consultation with CEU will so advise the employee in writing.

Sanction

11.2.20 A sanction may only be imposed on an LES employee who has been found by a determining officer to have breached the post's LES Code of Conduct. If a determination is made that an LES employee has breached the LES Code of Conduct, HOM/HOP may counsel him or her, or may (as the sanctioning officer) impose one or more sanctions in accordance with local employment law. As a guide, the Public Service Act 1999 provides for the following sanctions in respect of APS employees who have been found to have breached the APS Code of Conduct:

11.2.21 The Secretary has delegated to FAS CMD and AS RPB the power to terminate the employment of an LES employee following a determination of misconduct. When deciding on an appropriate sanction, HOM/HOP may consider the employee's past behaviour. HOMs/HOPs should seek local legal advice and must consult with CEU and PLI before imposing a sanction on an LES employee.

11.2.22 A determination that an LES employee has breached the LES Code of Conduct does not necessarily mean that a sanction must be imposed. HOM/HOP in consultation with CEU and PLI may decide that other action may be appropriate. For example, the employee may be counselled, with a view to preventing a recurrence of the misconduct in question. HOM/HOP following consultation with CEU and PLI may also determine that although substantiated, the nature of the employee's breach of the LES Code of Conduct is not serious enough to warrant further action.

11.2.23 If HOM/HOP, FAS CMD or AS RPB imposes a sanction on the LES employee, HOM/HOP must provide the employee a written statement which sets out the reasons for the determination and the imposition of the sanction. If HOM/HOP decides not to impose a sanction on the employee, HOM/HOP must provide a written statement which sets out the reasons for the determination and advises that no sanction has been imposed.

Can I Appeal a Determination or a Sanction?

11.2.24 Local employment law may provide appeal rights for LES employees determined to have breached the LES Code of Conduct and sanctioned. If an appeal is initiated, HOMs/HOPs should seek local legal advice and must consult with CEU and PLI.

Relationship to Criminal Charges

11.2.25 HOM/HOP in consultation with CEU and PLI may decide to refer alleged criminal behaviour by an LES employee to the relevant local law enforcement authorities, who may in turn decide to pursue criminal charges against the employee. Referring alleged criminal behaviour in this way does not preclude the department from simultaneously applying these procedures (section 11.2 of this Manual).

11.2.26 In cases where a matter is subject to both criminal and departmental misconduct processes, it may be appropriate for the department to delay the determination on the alleged misconduct until the decision of the court on the criminal matter is known.

11.2.27 If it comes to light that an LES employee, through his or her private actions, has been charged with a criminal offence, and

it may be appropriate to apply these procedures. It may also be appropriate to suspend the employee until the decision of the court is known. HOMs/HOPs should seek local legal advice and must consult with CEU and PLI before suspending an LES employee in these circumstances. An LES employee who has been charged with a criminal offence must advise HOM/HOP of this.

Changes in Employment Status

11.2.28 If an LES employee accused of misconduct resigns from the post during any stage of an investigation, determination or sanction process, the process in respect of that employee must be discontinued. However, resignation does not preclude referral of a criminal matter to the relevant local law enforcement authorities, who may decide to pursue criminal charges against the former employee.

Record-keeping

11.2.29 Records of investigation, determination and sanctioning processes in relation to LES employees are to be stored securely by HOM/HOP. Copies of all records of investigation, determination and sanctioning processes at post are to be forwarded to CEU. Records are to be maintained in accordance with the Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988.

1. Australian courts commonly refer to this as the Briginshaw v Briginshaw principle—see, for example, paragraph 53(g) of Lohsev Arthur (No 3) [2009] FCA 1118.

2. The Archives Act 1983 applies to records made under this clause.