12.1 Mandatory procedures for determining whether an APS Employee has breached the APS Code of Conduct and for determining any sanction to be imposed for a breach of the APS Code of Conduct

In these procedures:

1. a reference to the 'formal misconduct process' means these mandatory procedures for determining whether an APS employee has breached the Code of Conduct, and for imposing a sanction on an APS employee found to have breached the Code of Conduct;
2. a reference to an 'APS employee' means a current APS employee in DFAT and a former APS employee employed by DFAT and
3. reference to the 'Secretary' includes a reference to a delegate of the Secretary.

12.1.2 Pursuant to regulation 3.10 of the Public Service Regulations 1999, the Secretary may decide to suspend an APS employee from duties if the Secretary believes on reasonable grounds that the employee may have breached the Code of Conduct and the employee's suspension is in the public or DFAT's interests. The suspension may be with or without remuneration. The Secretary may also decide to re-assign the employee to other duties temporarily at the commencement of, or at any time during, the formal misconduct process.

12.1.3 Where the Secretary proposes to suspend an APS employee from duties or to re-assign the employee to other duties temporarily, the employee will be advised of the proposed decision in writing at the time they are advised of the Secretary's decision to institute a formal misconduct process. Other than in circumstances where it is appropriate that a decision to suspend an employee or re-assign them to other duties comes into effect immediately, the employee will be given a reasonable opportunity to comment on the proposal before a decision is made.

12.2 General guidance to APS employees on the formal misconduct process

12.2.1 This section is intended to supplement the mandatory procedures set out in section 12.1 by providing additional advice on aspects of the formal misconduct process.

Procedural fairness

12.2.2 Procedural fairness (or 'natural justice') refers to the requirement that decisions are made by way of a fair and proper process. In relation to a formal misconduct process, procedural fairness generally requires that an APS employee has a reasonable opportunity to make their case before any decision is made that they have breached the Code of Conduct or that a sanction should be imposed.

12.2.3 The steps that will meet procedural fairness obligations will depend on the circumstances of each case. Procedural fairness will apply to the formal misconduct process in the following way:

• the APS employee against whom allegations have been made will be informed of the allegations against them
• the APS employee will be provided with a reasonable opportunity to respond to the allegations and to put forward information and submissions before any decision is made on whether the employee has breached the Code of Conduct
• the APS employee will be informed of any new allegation or adverse information arising from an investigation into initial allegations made against them and
• the decision-maker will act without bias or the appearance of bias.

12.2.4 Procedural fairness does not require DFAT to provide a copy of the investigation report to the APS employee against whom allegations have been made. Investigation reports usually contain sensitive or other personal information about individuals other than the employee subject to a formal misconduct process. Other than in exceptional circumstances, employees will only be provided with the findings of fact set out in the investigation report and the elements of the Code of Conduct to which the findings may relate.

Privacy issues

12.2.5 The identity of APS employees who are subject to a formal misconduct process will be held closely within DFAT, consistent with the Privacy Act 1998. Their identity may need to be disclosed to witnesses during an investigation to allow for a fair and thorough investigation. The employee's personal information may also need to be disclosed to other parties, including the Commonwealth Ombudsman, the Office of the Australian Information Commissioner, the Inspector-General of Intelligence and Security or an APS agency to which the employee has moved or may seek to move.

12.2.6 The personal information of APS employees who are subject to a formal misconduct process may also need to be disclosed to employees' managers where appropriate in the circumstances (for example, where an employee is suspected of engaging, or has been found to have engaged in fraud, managers will be advised to ensure the employee has either limited or no financial responsibility as is appropriate in the circumstances).

12.2.7 The personal information of APS employees and other staff members who make allegations of misconduct may need to be disclosed to the APS employee against whom the allegations have been made. This is to ensure procedural fairness to the employee subject to a formal misconduct process, in order for that employee to be able to respond meaningfully to any allegations. Where complainants and witnesses have agreed to provide information on a confidential basis or where the decision-maker or investigator otherwise considers appropriate, the decision-maker or investigator will take reasonable steps to protect the identity of the complainant and/or witnesses. However, complainants and witnesses must be aware that the right of employees against whom allegations are made to be afforded procedural fairness may outweigh complainants' and witnesses' rights to privacy.

Protection of employees reporting allegations of misconduct and participating as witnesses in misconduct investigations

12.2.8 DFAT will take reasonable and appropriate steps to ensure APS employees who report allegations of misconduct and/or who participate as witnesses in any misconduct investigation are not subject to retribution, including victimisation or discrimination, for having done so. The decision-maker or investigator will consider any such risks to a complainant and/or witness on a case-by-case basis.

12.2.9 Even where a decision-maker or investigator takes measures to safeguard the identity of employees reporting allegations, it may nevertheless be possible for employees to be identified based on the nature of the information provided to the employee subject to the formal misconduct process.

Re-assignment of duties or suspension during the formal misconduct process

12.2.10 Action to temporarily re-assign the duties of, or to suspend, an employee may be taken at any time prior to, or during, a formal misconduct process. Suspension will generally be imposed where re-assignment to other duties is not appropriate. These powers will be used only where they are necessary to protect the public or DFAT's interests. They are not sanctions and will not be used by decision-makers to prejudge or determine whether there has been a breach of the Code of Conduct.

12.2.11 Relevant factors the Secretary will take into account in considering whether to suspend or temporarily re-assign the duties of an APS employee subject to a formal misconduct process include:

• any potential for an employee to interfere with or inhibit an investigation (e.g. destroying evidence or speaking to witnesses);
• a risk that the alleged misconduct will continue or be repeated; and
• a risk to the maintenance of an effective workplace or to the safety of other employees or the public.

12.2.12 Where the Secretary proposes that an APS employee is to be re-assigned duties or suspended during an investigation, the employee will usually be advised in writing and be given a reasonable opportunity to comment before a decision is taken. However, in some exceptional circumstances, where the public or DFAT's interests require the re-assignment of duties or suspension to come into effect immediately, a decision will be made without providing the employee the opportunity to comment. In such cases, the employee may comment after the initial suspension or re-assignment of duties, which will be taken into account on any review of the suspension or re-assignment of duties.

12.2.13 The Secretary may decide to suspend an employee with or without remuneration. The decision as to whether suspension is to be with or without remuneration will be made at the same time as the suspension decision, and as part of the same process. Employees suspended without remuneration may access paid leave entitlements during the period of suspension but will still be considered to be suspended from the workplace (and not on leave). Employees electing to access paid leave entitlements while suspended without remuneration will not be able to have those entitlements re-credited to them if they are subsequently found not to have breached the Code of Conduct.

12.2.14 Relevant factors the Secretary will take into account in considering whether to suspend an employee with or without remuneration include:

• the seriousness of the alleged misconduct (suspension without remuneration would usually be appropriate in cases of alleged misconduct where, if found to have been a breach of the Code of Conduct, the sanction imposed might be termination of employment)
• whether suspension without remuneration would give an employee an incentive to cooperate with an investigation
• the personal and financial circumstances of an employee, to the extent known and
• the estimated duration of the formal misconduct process.

12.2.15 A suspension without remuneration must not be longer than 30 days, except in exceptional circumstances, such as:

• there is a strong prima facie case of serious misconduct
• an employee has found to have breached the Code of Conduct, a sanction is yet to be imposed and it is appropriate for the employee to remain suspended until such time as a sanction is imposed
• an employee has been charged with a criminal offence and is waiting for the charge to be heard and determined and
• an employee has appealed against a criminal conviction and is awaiting an appeal.

12.2.16 A suspension must end immediately when the Secretary no longer believes on reasonable grounds that the employee has, or may have, breached the Code of Conduct, or where it is no longer in the public or DFAT's interests to continue the suspension. A suspension must also end as soon as any sanction is imposed for a breach of the Code of Conduct.

Sanctions for breaches of the Code of Conduct

12.2.17 Sanctions are intended to be proportionate to the nature of the breach of the Code of Conduct, provide a clear message to the employee that their conduct was not acceptable and act as a future deterrent to the employee.

12.2.18 In deciding what sanctions, if any, should be imposed for a breach of the Code of Conduct, the sanction delegate will usually take into consideration:

• the employee's previous employment history
• the nature and seriousness of the breach and the type of misconduct involved
• the degree of relevance of the misconduct to the employee's duties or to the reputation of DFAT and/or the APS
• the effect of the proposed sanction on the employee
• any loss of earnings already incurred by the employee as a result of suspension without remuneration
• alternatives to formal sanctions available under the Public Service Act in appropriate cases, which might include removal from temporary performance of higher duties, withdrawal from an overseas posting or refusal to consider the employee for future posting opportunities for a period of time
• previous breaches of the Code of Conduct by the employee and
• any additional information that might be considered relevant.

Misconduct involving or related to APS employees at an overseas post

12.2.19 The Secretary may decide to withdraw an APS employee serving overseas at any time, including where the employee is alleged to have breached the Code of Conduct. A withdrawal might be for a temporary period or permanently. Such a decision would be particularly appropriate in cases where allegations are so serious that it would not be appropriate for an employee to continue representing the Australian Government overseas, and/or where an expeditious or efficient investigation into allegations would be best served by the employee returning to Australia. Termination of an employee's posting is not considered to be a sanction. Rather, it is a re-assignment of duties pursuant to section 25 of the Public Service Act.

12.2.20 Members of the household of an APS employee who accompany the employee on an overseas posting are not covered by either the APS Code of Conduct or the DFAT Code of Conduct for Overseas Service. However, inappropriate conduct by household members may lead to the termination of the employee's posting. A decision to terminate an employee's posting does not constitute a finding that the employee has breached the Code of Conduct.

Circumstances where the Secretary may decide not to institute a formal misconduct process in response to allegations of misconduct

12.2.21 DFAT seeks to maintain both balance and proportion in managing allegations of misconduct. Not all allegations require the Secretary to institute a formal misconduct process.

12.2.22 To recommend the Secretary investigate an allegation of misconduct, EES will consider the following criteria derived from the Australian Government Investigation Standards (AGIS) and Australian Public Service Commission (APSC) guidance:

1. An allegation likely to be substantiated;
2. A prior record of misconduct exists;
3. Reporting has been received on employee in relation to the same or similar issue;
4. Intention of employee, including recklessness or carelessness;
5. Extent to which the behaviour is within the control of the employee;
6. Seriousness of alleged misconduct, specifically:
   
   1. Impact on the Department's reputation;
   2. Issues affecting Work Health and Safety;
   3. Large financial losses;
   4. Impact from a Protective Security Policy Framework lens.
7. Public interest in the allegation, in particular media reporting on the case which could undermine public confidence in the integrity of the department and APS;
8. Availability of evidence, including availability and willingness of witnesses to provide information;
9. Seniority of officer an allegation made against (noting SES officers are held to higher account that non-SES officers);
10. Conduct that could constitute criminal behaviour; and
11. Systemic issues involving more than one employee.

12.2.23 Depending on its nature and severity, allegations of misconduct against an APS employee may best be handled as a performance or behavioural management issue and managed through a process of informal counselling or more formal performance management processes. For example, where allegations of misconduct are relatively minor, or where they involve interpersonal disputes between staff members, alternative forms of dispute resolution (such as mediation or counselling) may be the most effective way to address concerns and change inappropriate behaviours. Criteria established by the APSC (see paragraphs 5.1.1 to 5.1.10 of the APSC publication Handling Misconduct: A human resource managers guide) should be considered when deciding on action in response to an allegation that could also be characterised as a performance issue.

12.2.24 Where allegations appear to be a minor infringement of the Code of Conduct and/or atypical behaviour from an APS employee, in lieu of instituting a formal misconduct process the Secretary may decide instead to issue the employee with a formal warning in relation to their behaviour. The taking of any such management action does not constitute a formal sanction pursuant to section 15(1) of the Public Service Act and does not preclude DFAT from instituting a formal misconduct process for the same conduct or behaviour if warranted in the circumstances.

Security clearance issues

12.2.25 DFAT is not required to institute a formal misconduct process where alleged misconduct relates primarily to an APS employee's suitability to hold a security clearance. However, any process that involves a consideration of an APS employee's suitability to hold a security clearance arising from alleged misconduct does not prevent DFAT from instituting a formal misconduct process in relation to the same alleged misconduct if the circumstances so warrant.

12.3 General guidance on managing alleged misconduct by Locally Engaged Staff (LES)

12.3.1 This section is intended to provide guidance to APS employees and employees engaged as LES on managing allegations of misconduct by LES.

12.3.2 This guidance relates to all LES employed by DFAT working at DFAT-managed posts, including those LES employed by DFAT but working for other Commonwealth agencies. This guidance does not apply to Austrade LES.

Procedures for determining whether a LES member has breached a post's LES Code of Conduct and for determining the sanctions to be imposed for any breach of a post's LES Code of Conduct

12.3.3 Each of DFAT's missions and posts will have a LES Code of Conduct that applies to all LES employed by DFAT. Those LES Codes of Conduct will have been drafted so as to be consistent with the laws of the local jurisdiction.

12.3.4 Procedures for determining whether a LES member has breached a post's LES Code of Conduct must be consistent with local law. The same will apply for procedures for determining the sanctions to be imposed for any breach of a post's LES Code of Conduct.

12.3.5 Subject to local legal advice, posts may use any or all of the procedures outlined in chapter 12.1 for determining whether a LES member has breached the post's LES Code of Conduct, and for determining the sanctions to be imposed for such a breach. The procedures outlined in chapter 12.1 must not be used where any part of the procedures is inconsistent with local law.

Guidance to LES employees on the formal misconduct procedures

12.3.6 LES members should seek guidance from their Senior Administrative Officer or Head of Mission/Post on the process that will apply to any alleged breach of post's LES Code of Conduct, and on other relevant matters.

12.3.7 Unless inconsistent with local law, the guidance for APS employees in chapter 12.2 will likely be relevant for an LES member.

12.4 General guidance on managing alleged misconduct by independent contractors

12.4.1 This guidance relates only to independent contractors – individuals providing services to DFAT under a contract between DFAT and an individual, or a contract between DFAT and another organisation.

12.4.2 Independent contractors are not DFAT employees and therefore not subject to the APS Code of Conduct. The expected standards of behaviour of independent contractors in DFAT will generally be outlined in the relevant contractual arrangements, either between DFAT and the individual contractor, or between DFAT and the organisation which is providing DFAT with personnel.

12.4.3 Managers of contracts for the services of personnel must familiarise themselves with the contractual arrangements. Those arrangements will usually require independent contractors to conduct themselves in accordance with the standards of behaviour set out in the APS Code of Conduct. That is, contractors will usually be required as part of the contract for services to adhere to the APS Code of Conduct, the APS Values and the APS Employment Principles while working in DFAT. Conduct which fails to meet these standards may be a breach of the contract.

12.4.4 DFAT does not usually investigate allegations of misconduct by independent contractors. However, DFAT can conduct an investigation where the service provider, or organisation which is providing DFAT with personnel, requests an investigation, and the Secretary considers it in the public or DFAT's interests to conduct one. Such an investigation will not be for the purposes of a formal misconduct process, but for the benefit of all relevant parties involved in order to investigate allegations and make findings of fact.

12.4.5 The following process will usually be adopted for managing allegations of misconduct by independent contractors:

1. the DFAT employee who manages the contract under which the independent contractor is engaged will advise the Employee Conduct and Ethics Section of the allegations
2. the DFAT employee who manages the contract will inform the service provider of the allegations, and the ways in which the alleged misconduct may fail to meet the expected standards of behaviour of contractors, as outlined in the contract
3. the service provider will inform the independent contractor of the allegations
4. both DFAT and the service provider will consider how best to handle the allegations of misconduct, including whether DFAT should conduct an investigation
5. DFAT and/or the service provider will takes relevant action pursuant to the contract and/or any investigation finding
6. DFAT and/or the service provider will notify the other party of any action taken pursuant to the contract, and will make a written record of such action and
7. the service provider will inform the independent contractor of any action taken.