Purpose
1. The Australian Public Service (APS) Code of Conduct (the Code) sets out the behavioural standards expected of APS employees. The Code is set out in section 13 of the Public Service Act 1999 (PS Act). The PS Act, section 15(3) requires that each agency has written procedures established for determining suspected breaches of the Code and what sanction, if any, is to be imposed if a breach is found.
2. All ARPANSA employees engaged under the PS Act, must be aware of, and are required to comply with the APS Code of Conduct, including to at all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of ARPANSA and the APS.
Scope
3. All ARPANSA employees engaged under the PS Act, the Chief Executive Officer (CEO) and Senior Executive Service (SES) must comply with these Procedures. Failure to do so may result in disciplinary action being taken against you under the Code which may result in termination of your employment or engagement with ARPANSA.
4. Although the sanctions within the Code cannot be applied to contractors, students, volunteers, and consultants, it is a requirement that whilst engaged by the ARPANSA they conduct themselves at all times in a way which is consistent with the Code. Failure to do so may result in termination based on the terms of the contract with ARPANSA.
Application of procedures
5. These procedures apply:
- a) when determining whether a person who is an APS employee in the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), or who is a former APS employee who was employed at ARPANSA at the time of the suspected misconduct, has breached the Code.
- b) in determining any sanction to be imposed on an APS employee at ARPANSA who has been found to have breached the Code.
- c) to any suspected breach of the Code except for one in respect of which a decision had been made before [insert date approved] to begin an investigation to determine whether there has been a breach of the Code.
6. 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.
7. Not all suspected breaches of the Code need to be dealt with by way of determination under these procedures. In certain circumstances, another way of dealing with a suspected breach of the Code may be more appropriate, including, but not limited to, performance management. In many cases, less formal management action such as counselling, further training and/or other people management practices may be adopted where appropriate to the circumstances to resolve the matter. Examples include cases where the suspected breach is considered relatively minor in nature and the employee readily agrees their behaviour fell short of ARPANSA’s expectations and the Code.
8. The process of handling suspected breaches of the Code at ARPANSA comprises two stages:
- a) determine whether a breach of the Code has occurred; and
- b) decide what, if any, sanction is appropriate in the circumstances.
9. As soon as practicable after a potential breach of the Code has been identified, it must be brought to the attention of HR or General Counsel. They may seek further advice in relation to the potential breach as appropriate. If breaches of other legislation have also occurred, other reporting processes need to be considered, e.g., under the PGPA Act.
10. A formal misconduct process is one option available to agencies when behaviour does not meet expectations, but it will not be a suitable or proportionate response in every case. As a general principle, the more serious the alleged behaviour or the greater its potential impact on public confidence in the APS, the more likely it is that misconduct action will be appropriate. In assessing this, agencies should consider how the behaviour would be viewed by a reasonable member of the community, having regard to factors such as:
- a) the seniority of the employee;
- b) the role of the employee;
- c) the nature and extent of the conduct.
Availability of procedures of effect
11. As provided for in subsection 15(7) of the Act, these procedures are publicly available on ARPANSA’s website.
Breach Decision-Maker and Sanction Delegates
12. Once the CEO or Delegate has decided to deal with the suspected breach under these procedures, an appropriate Delegate (the Breach Decision-Maker) will be appointed to take responsibility for making a determination under these Procedures.
The Australian Public Service Commissioner's Directions 2022 provide that where the conduct of an APS employee raises concerns that relate both to effective performance and possible breaches of the Code, the Agency Head must, before deciding to commence formal misconduct action, have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner (clause 52).
13. The role of the Breach Decision-Maker is to determine in writing whether a breach of the Code has occurred.
14. The Breach Decision-Maker may seek the assistance of an appropriate investigator with matters including investigating the alleged breach, gathering evidence and making a report of recommended factual findings to the Breach Decision-Maker. While it is open to the investigator to make recommendations to the Breach Decision-Maker as to whether the breach of the Code have occurred, it remains the responsibility of the breach decision maker to form their own opinion and ultimately determine whether a breach of the Code has occurred.
15. Where the Breach Decision-Maker determines that a breach of the Code has occurred, the case will be referred to a person with the appropriate authority to impose sanctions under the PS Act (the Sanction Delegate).
16. The Breach Decision-Maker and the Sanction Delegate must be, and appear to be, independent and unbiased.
17. The Breach Decision-Maker and the Sanction Delegate must act with integrity and 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 or have a friendship outside the workplace.
18. These procedures do not prevent the Breach Decision-Maker from being the Sanction Delegate in the same matter where the Breach Decision-Maker holds the necessary authority to impose sanctions. Where the Breach Decision-Maker and the Sanction Delegate are different, the Breach Decision-Maker will provide the Sanction Delegate with a copy of the statement of reasons for the finding of breach together with a recommendation for the sanction to be imposed.
Any delegation of powers under the PS Act that is proposed to be made to a person who is not an APS employee must be approved in writing in advance by the Australian Public Service Commissioner. This is required by subsection 78(8) of the PS Act.
19. The Breach Decision-Maker and the Sanction Delegate must have regard to the Australian Public Service Commission’s publication, ‘Handling Misconduct: A human resources practitioner’s guide to the reporting and handling of suspected and determined breaches of the Code’ in making the determination and the decision in relation to sanction.
20. It may be necessary to collect, use and disclose personal information in order to undertake actions in relation to these Procedures. Any collection, use or disclosure of personal information will be undertaken in accordance with the Privacy Act 1988 and guidelines issued by the Australian Public Service Commissioner.
Determination process
Procedural fairness
21. The determination process must be consistent with the principles of procedural fairness. Procedural fairness generally requires that:
- a) the person suspected of breaching the Code is informed of the case against them and provided with any credible, relevant and significant evidence collected during the investigation;
- b) the decision-maker is impartial, and free from actual or apparent biases;
- c) the person whose interests will be affected by a proposed decision receives a fair hearing, including a reasonable opportunity to respond, comment or correct the record on any adverse material that could influence the decision, before any decision is made on breach or sanction;
- d) If new or conflicting evidence comes to light that is relevant, credible, and significant, reasonable steps must be taken to provide the person under investigation with a reasonable opportunity to respond to that evidence before a decision on breach is made; and
- e) findings are based on evidence that is relevant and logically capable of supporting the findings made.
22. Procedural fairness does not always require that adverse material be put in writing. Subject to any requirement of these Procedures, it may be appropriate in some cases to put adverse material to the person at an interview.
23. The right to procedural fairness arises only in relation to a person whose rights or interests may be adversely affected by a decision. Usually this will only be the employee whose conduct is in question, rather than, for example, witnesses or complainants.
Preliminary inquiries
24. Preliminary inquiries are essential to enable an informed assessment as to whether the allegations may require further action either through less formal mechanisms or more formally under these procedures.
25. HR will in most cases undertake discreet and confidential preliminary inquiries into the matter and make recommendations to the Delegate as to any further action that may be required or appropriate in the circumstances of the matter.
26. The CEO or Delegate will then decide whether to deal with the suspected breach under these Procedures. Note that there is no procedural fairness obligation to provide any employee an opportunity to comment before deciding to initiate an investigation under these Procedures.
The determination
27. A determination shall be made with as little formality and as much expedition as a proper consideration of the matter allows.
28. 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:
- a) the details of the suspected breach of the Code, including any subsequent variation of those details; and
- b) where the person continues to be an APS employee, the sanctions that may be imposed on them under subsection 15(1) of the PS Act.
29. A person suspected of breaching the Code will be given the opportunity to make a statement responding to the suspected breach. The statement may be a written or oral statement and should be provided within seven calendar days of when the person was informed of the suspected breach and potential sanctions; or any longer period that is allowed by the Breach Decision-Maker. An opportunity to confirm an oral statement is factual and accurate will be provided.
30. A person making a statement may have more than one opportunity to make a statement within the determination process.
31. To determine whether a person who is, or was, an APS employee at ARPANSA has breached the Code, a formal code process is not required as detailed in these procedures.
Formal code process
32. The Breach Decision-Maker will provide a Code Notice to the employee who is the subject of the allegations setting out:
- a) an outline of the matters which have given rise to concern;
- b) the subsection/s of the Code under consideration that may have been breached if the allegation/s were found to be substantiated;
- c) the sanctions specified in subsection 15(1) of the PS Act;
- d) an indication of the next steps which will be taken in accordance with these procedures and who will be taking them (for example, an appointed investigator);
- e) advice on the opportunity to participate in an interview to discuss the matter, should the employee wish to do so;
- f) advice on the employee’s entitlement to have a support person of their choice present during the interview; and,
- g) advice on the opportunity to provide a written statement about the suspected breaches of the Code should the employee wish to do so.
33. The Breach Decision-Maker (or the person assisting the Breach Decision-Maker, if any), where they consider in all the circumstances that the request is reasonable, must agree to a request made by the person who is suspected of breaching the Code to have a support person present in a meeting or interview they conduct. The Breach Decision-Maker (or the person assisting) can restrict the role of a support person as considered appropriate, including making clear that the support person cannot act as a representative or advocate.
34. The employee does not have to respond, either in writing or orally, to the Code Notice, participate in an interview or provide a written statement if the employee does not wish to do so. However, any decision will be made based on the available information, including information provided by the employee at interview or in a written statement.
35. An employee who does not exercise the opportunity to provide a statement in relation to the suspected breach shall not, for that reason alone, be taken to have admitted to the suspected breach.
Investigation process
36. 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 to the Breach Decision-Maker. Given the relatively small size of ARPANSA, the investigation process would generally be undertaken by an independent external investigator who has the necessary expertise and specialisation in such matters.
37. Any investigation will comply with all relevant legislation such as the Privacy Act 1988.
38. Where an interview is arranged, the employee is entitled to have a support person of their choice, such as a supervisor, colleague, or a union or legal representative, present during any interview about the allegations if they wish to. The support person cannot be a person who is or may be either a potential witness, or is otherwise involved, in any of the matter/s subject of the interview.
39. If the details of the suspected breach/es of the Code vary during a formal Code process under these Procedures, the employee will be informed of any variation of those details.
40. Upon completion of the investigation the Breach Decision-Maker must decide whether the employee has, or has not, breached the Code. This conclusion will be informed by the preparation of an investigation report and be reached applying the ‘balance of probabilities’ test.
41. If the Breach Decision-Maker forms the view that the employee has not breached the Code or that, for any other reason, the investigation should not proceed, the decision-maker will inform the Delegate. The Delegate will inform the employee in writing of the determination and the process will be finalised and closed.
Preliminary view that breach has occurred
42. If the Breach Decision-Maker forms a preliminary view that the employee has breached the Code, the decision-maker will advise the Delegate and provide the employee with a copy of the investigation report and written advice of the preliminary views on breach/es of the Code. The Breach Decision-Maker’s written advice on preliminary views will also provide the employee with an opportunity to submit a written response to the preliminary findings, should the employee wish to do so.
43. The timeframe provided to an employee to submit a written response will be a period of seven calendar days, or a longer period as agreed to by the Breach Decision-Maker.
44. Following the timeframe provided to the employee for the submission of a written response, and after considering any response received from the employee, the Breach Decision-Maker will evaluate the evidence and make final findings. In making their findings, the Breach Decision-Maker must have regard to the impact of unconscious bias and apply a ‘balance of probabilities’ approach.
45. The Delegate will provide the employee with written advice as to the final determination. If the determination is that a breach of the Code has occurred, the Delegate will also advise the employee of their review rights under Section 33 of the PS Act and refer the case to a Sanction Delegate.
Suspected breaches of the code by SES employees
46. If an SES employee in an Agency is suspected of breaching the Code, the CEO must consult with the APS Commissioner on the process for determining whether the employee has breached the Code and on imposing a sanction for breach (if any). The CEO must consult on:
- a) the process for determining whether the employee has breached the Code, and
- b) if the CEO is considering imposing a sanction, the sanction to be imposed.
Sanctions
47. The Sanction Delegate’s role will commence after a breach determination is made. The role of the Sanction Delegate is to determine in writing what, if any, sanction or sanctions should be imposed on an APS employee for a breach of the Code.
48. Sanctions may not be imposed on former employees.
49. The process for deciding and imposing a sanction must be consistent with the principles of procedural fairness.
50. If a determination is made that an APS employee in ARPANSA has breached the Code, a sanction may not be imposed on the employee unless reasonable steps have been taken to:
- a) inform the employee of the determination that has been made and the sanction or sanctions that are under consideration; the factors that are under consideration in determining any sanction to be imposed; and
- b) give the employee a reasonable opportunity to make a statement in relation to the sanction or sanctions under consideration within seven calendar days of when the person was informed of a preliminary decision, or any longer period that is allowed by the Sanction Delegate.
51. The Sanction Delegate may agree to a request made by the person determined to have breached the Code to have a support person when making an oral statement. The Sanction Delegate can restrict the role of the support person as considered appropriate, including making clear that the support person cannot act as a representative or advocate.
52. Where a sanction of termination of employment is under consideration the Sanction Delegate should not unreasonably refuse to allow the employee to have a support person present to assist at any discussion relating to termination to ensure that any termination of employment will not be found unfair by the Fair Work Commission because of any such refusal: s 387(d) of the Fair Work Act 2009.
53. The Sanction Delegate may impose one or more of the following sanctions where an employee is found to have breached the Code:
- a) termination of employment
- b) reduction in classification
- c) re-assignment of duties
- d) reduction in salary
- e) deductions from salary, by way of a fine, of no more than 2% of an employee's annual salary or
- f) a reprimand.
54. The Sanction Delegate may also decide to impose no sanction.
Suspension from duties
55. The Public Service Regulations 1999 (the Regulations) provide that the CEO or Delegate may suspend an APS employee if, on reasonable grounds, they believe:
- a) the employee has, or may have breached the Code; and,
- b) suspension is in the public, or the Agency’s, interest.
56. The Delegate may consider suspending an employee from duties, with or without remuneration or temporarily transferring the employee to another area of ARPANSA, either prior to or after the commencement of a Code process.
Criminal matters
57. Where a suspected breach of the Code may be a criminal matter the Delegate must obtain further advice from law enforcement and liaise with General Counsel to determine how to proceed.
58. Where an employee has been charged with a criminal offence (including in relation to activity occurring in a person’s private life), the Delegate may decide, in consultation with General Counsel, that it is appropriate to suspend the employee and/or investigate the matter as a possible breach of the Code immediately or after the conclusion of the criminal case.
Record of determination and sanction
59. If a determination in relation to a suspected breach of the Code by a person who is, or was, an APS employee at ARPANSA is made, a written record must be made of:
- a) the suspected breach; and
- b) the determination; and
- c) where the person is an APS employee; any sanctions imposed because of a determination that the employee has breached the Code; and
- d) the statement of reasons given to the person regarding the determination in relation to the suspected breach of the Code, or, in the case of an employee, regarding the sanction decision.
60. Records relating to the misconduct action are retained and kept separate from the employee's personal file. A cross-reference on the personal file should indicate the existence of a separate misconduct file.
61. The misconduct files are classified ‘Official: Sensitive’, consistent with the Australian Government’s Protective Security Policy Framework, and held in secure storage on Content Manager.
62. Access for management purposes is only allowed on a need-to-know basis. Sanction Delegates who are deciding a sanction for subsequent misconduct should have access to these records to allow them to give proper weight to the employee’s prior misconduct in deciding a suitable sanction.
63. The Archives Act 1983 and the Privacy Act 1988 apply to ARPANSA records. The National Archives of Australia, in the Administrative Functions Disposal Authority of 2000, set out the minimum retention periods for records relating to misconduct.
Inter-agency moves or resignation
64. Movement between agencies (including for promotion) for employees suspected of a breach of the Code will not take effect until the matter is resolved, unless agreed by the respective Agency Heads.
65. The APS employee under investigation must remain at ARPANSA until the matter is resolved, unless the CEO and receiving Agency Head agree otherwise. Resolved means that a determination of breach is made, or it is decided that a determination is not necessary.
66. Should the CEO and receiving Agency Head agree to a move prior to the resolution of a suspected breach of the Code, the receiving agency may continue an investigation, determine whether the APS employee has breached the Code and/or impose a sanction based on the former agency’s investigation.
67. Where an employee resigns during an investigation the CEO or delegate may choose, depending on the circumstances, to discontinue or continue the process to determine whether the APS employee has breached the Code.
Review rights
68. Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred, or the sanction imposed (except in the case of termination) may lodge an application to the Merit Protection Commissioner under Division 5.3 of the PS Regulations.
69. An application for review of a determination that an employee has breached the Code, or a sanction imposed because of the breach, must be made to the Merit Protection Commissioner, as required by Regulation 5.24(2). Time limits apply, as set out on the Merit Protection Commissioner website.
70. Making an application for review does not prevent ARPANSA from proceeding with an action, or implementing a decision, that is subject to a review application.
71. An employee who has been dismissed may have remedies under the Fair Work Act 2009, or other Commonwealth laws.
Code of conduct process flowchart
This Flowchart is intended as an illustrative overview of the Code of Conduct process and must be considered in conjunction with the steps outlined in these procedures.
Enquiries
72. Any enquiries in relation to this procedure should be directed to the HR Team via hr@arpansa.gov.au.
73. Further information on the APS Values, Employment Principles and the Code are available on the Australian Public Service Commission website and from the Ethics Advisory Service.
Terms and definitions
|
Term |
Definition |
|
Breach Decision Maker |
Person appointed by the CEO or Delegate to make determinations as to whether an APS employee has breached the Code. |
|
Sanction Delegate |
Person who is the delegate of the CEO under s15(1) of the PS Act for the purpose to impose sanctions on an employee who is found to have breached the Code. |
|
Support person |
A person selected by the employee to provide support during a discussion the employee has with the employee’s manager or supervisor. |
References
|
Abbreviation |
Title |
Issue date |
|
The PS Act |
1999 |
|
|
The Code |
1999 |
|
|
The Regulations |
1999 |
|
|
Commissioner's Directions |
2022 |
|
|
Privacy |
Australian Privacy Principles |
1988 |
|
Records and Archives |
Administrative Functions Disposal Authority |
1983 |
|
ARPANSA Agreement |
2017 |
|
|
Delegate |
ARPANSA Instrument of Delegation relating to Employment Functions and Powers |
2021 - 2022 |
