PRO-015, Version 2.2, 9 July 2014
Code of Conduct Guidelines and Procedures (216kb)
Version 2.2, 9 July 2014
National Museum of Australia Code of Conduct Guidelines and Procedures (‘Guidelines’).
PART A - GENERAL
The National Museum of Australia (the Museum) is a major cultural institution charged with researching, collecting, preserving and exhibiting historical material of the Australian nation. The Museum focuses on the three interrelated areas of Aboriginal and Torres Strait Islander history and culture, Australia’s history and society since European settlement in 1788 and the interaction of people with the environment.
Established in 1980, the Museum is a publicly funded institution governed as a statutory authority in the Commonwealth Arts portfolio. The Museum’s building on Acton Peninsula, Canberra opened in March 2001.
These Guidelines apply to all employees of the Museum and may be applied to former employees of the Museum, where that employee is suspected of breaching the Code of Conduct. These Guidelines also apply to Australian Public Service (APS) employees who knowingly provide false or misleading information in connection with their engagement as an employee of the Museum.
The purpose of this document is to:
- outline the APS Code of Conduct, the APS Values and the APS Employment Principles and how they apply to Museum employees, former employees and statutory office holders in particular circumstances
- provide an overview of the roles and responsibilities of staff and other stakeholders in relation to the Code of Conduct, APS Values and APS Employment Principles
- provide guidelines for reporting suspected breaches of the Code of Conduct
- provide guidelines about whether a formal or informal process should be initiated
- outline the procedures to be followed by decision-makers when determining whether an APS employee, or former APS employee, in the Museum has breached the Code of Conduct (see Part C)
- outline the procedures to be followed by decision-makers when determining the sanction (if any) to be imposed on an employee in the Museum who is found to have breached the Code of Conduct (see Part D)
- outline record keeping requirements relating to suspected breaches of the Code of Conduct and related matters
- provide an overview of review of actions.
In these Guidelines, unless the contrary intention appears, 'decision-maker' means:
a. in relation to decisions made under these Guidelines – the Director or a Senior Executive Service (SES) employee of the National Museum of Australia;
b. in relation to decisions made under the Public Service Act 1999, the Public Service Regulations 1999, the Australian Public Service Commissioner’s Directions 2013 or any other Act or legislative instrument – a person to whom the power to make a particular decision has been authorised or delegated by the Director.
4. Commencement date
The guidelines and procedures contained in this document apply from 1 July 2014.
The APS Code of Conduct requires APS employees at all times to behave in a way that upholds the APS Values, the APS Employment Principles and the integrity and good reputation of the agency and the APS. All employees of the Museum must comply with the APS Code of Conduct, the APS Values, the APS Employment Principles, all applicable laws and any other requirements prescribed by the Public Service Regulations 1999 or the Australian Public Service Commissioner’s Directions 2013.
Employees should be aware that certain requirements in the APS Code of Conduct apply 'at all times' and other requirements apply 'in connection with' an employee's APS employment, and accordingly such requirements can extend to behaviour outside of the workplace.
6. The APS Code of Conduct
Section 13 of the Public Service Act 1999 sets out the APS Code of Conduct:
(1) An APS employee must behave honestly and with integrity in connection with APS employment.
(2) An APS employee must act with care and diligence in connection with APS employment.
(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, 'Australian law' means:
(a) any Act (including [the Public Service Act 1999]), or any instrument made under an Act; or
(b) any law of a State or Territory, including any instrument made under such a law.
(5) 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.
(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
(7) An APS employee must:
(a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and
(b) disclose details of any material personal interest of the employee in connection with the employee's APS employment.
(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose.
(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
(10) An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
(a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
(b) to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.
(11) 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.
(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
(13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.
7. The APS Values
Section 10 of the Public Service Act 1999 sets out the following APS Values:
Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
Committed to service: The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.
Accountable: The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
Respectful: The APS respects all people, including their rights and their heritage.
Ethical: The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.
Further details and examples of behaviour and standards of conduct under the APS Values are contained in the Australian Public Service Commissioner’s Directions 2013.
7.1 The importance of the APS Values
The APS aspires to be among the best in the world – a Service that is recognised and valued because its people:
- take the extra steps necessary to ensure that the needs of the Australian community are identified and met;
- are forward looking and innovative;
- work together and with the community to meet community needs; and
- deliver effective programs and excellent service with maximum efficiency, and so provide great value for money.
Fundamental to the achievement of these goals is the set of attitudes and behaviours that APS employees bring to their work. The APS Values, together with the APS Employment Principles, define the APS as an institution, and guide it in its dealings with everyone and in everything it does. Behaviour consistent with the APS Values strengthens public trust and confidence in public administration, and provides a secure foundation to guide the APS into the future.
7.2 The application of the APS Values
The APS Values and the APS Commissioner's Directions, set out standards and outcomes that are required of APS employees, taking account of an individual’s duties and responsibilities.
Each of the APS Values is of equal importance. There is no hierarchy of Values. There may be particular situations where there is tension between the different APS Values that are to be applied. In such cases, good judgement will need to be exercised to find the appropriate balance between competing demands.
8. APS Employment Principles
Section 10A of the Public Service Act 1999 sets out the APS Employment Principles, as follows:
The APS is a career-based public service that:
(a) makes fair employment decisions with a fair system of review;
(b) recognises that the usual basis for engagement and promotion is as an ongoing APS employee;
(c) makes decisions relating to engagement and promotion that are based on merit;
(d) requires effective performance from each employee;
(e) provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued;
(f) provides workplaces that are free from discrimination, patronage and favouritism; and
(g) recognises the diversity of the Australian community and fosters diversity in the workplace.
9. Roles and responsibilities
All employees of the Museum have responsibilities under these Guidelines. The role and responsibility for employees may vary, subject to the position held by the employee at a particular point in time.
9.1 The role and responsibility of the Director of the National Museum of Australia
The Director is responsible for upholding and promoting the APS Values and the APS Employment Principles.
In accordance with section 15 of the Public Service Act 1999, the Director is required to establish procedures for:
- determining whether an employee of the Museum or former employee of the Museum has breached the Code of Conduct; and
- determining the sanction (if any) that is to be imposed on an employee of the Museum who is found to have breached the Code of Conduct.
In addition to the APS Values and APS Employment Principles, the Director may issue other instructions which set out procedures to be followed by, and standards of behaviour required of, an employee of the Museum.
9.2 The role and responsibility of members of the Senior Executive Service (SES) in the National Museum of Australia
All SES employees at the Museum are required to uphold and promote the APS Values and APS Employment Principles, by personal example and other appropriate means.
In addition, SES employees at the Museum have specific responsibilities as decision-makers in relation to suspected breaches of the Code of Conduct, which are outlined throughout these Guidelines.
9.3 The role and responsibility of the Chief Operating Officer of the National Museum of Australia
The Chief Operating Officer has responsibility for ensuring relevant policies and procedures are maintained, published and promulgated to Museum employees. In addition, the Chief Operating Officer may provide support and advice to ensure consistent application of these Guidelines across the Museum.
9.4 The role and responsibility of the HR Manager of the National Museum of Australia
The HR Manager is responsible for the effective and confidential administration of Code of Conduct investigations, including maintaining and storing confidential records and ensuring matters impacting pay and conditions are promptly actioned.
The HR Manager is also responsible for providing advice to managers, employees and former employees involved in alleged breaches of the Code of Conduct, to ensure procedural fairness, equity and compliance with relevant procedures.
9.5 The role and responsibility of managers and supervisors of the National Museum of Australia
Managers and supervisors of the Museum are responsible for:
- ensuring their staff are aware of the APS Values and the APS Employment Principles;
- ensuring their staff understand what constitutes acceptable standards of conduct;
- ensuring the conduct of all employees in their work area is effectively monitored and maintained at a high standard;
- ensuring staff have access to relevant training courses and other material relevant to Code of Conduct, APS Values, APS Employment Principles and related matters;
- leading employees by example and maintaining high standards of personal behaviour and conduct;
- managing minor allegations of misconduct, quickly and with little formality, for example cases involving personality clashes may be more appropriately handled using performance management processes, dispute resolution processes, counselling, training or other informal methods; and
- referring allegations of misconduct to a decision-maker, where the matter is considered serious or cannot be resolved using informal processes.
9.6 The role and responsibility of all employees of the National Museum of Australia
All employees of the Museum are responsible and accountable for:
- complying with the APS Code of Conduct, APS Values and APS Employment Principles and any reasonable directions issued by the Museum relating to standards of behaviour and conduct;
- attending compulsory training and awareness sessions provided by the Museum in relation to the APS Values and APS Employment Principles; and
- constructively participating in discussions or counselling sessions to address workplace behaviour and conduct issues.
9.7 The role and responsibility of investigators appointed to undertake an investigation into an alleged breach of the Code of Conduct by an employee or former employee of the Museum
An investigator, appointed by the Museum to undertake an investigation into an alleged breach of the Code of Conduct, is responsible for complying with the processes outlined in these Guidelines and any specified terms and conditions contained within the terms of their appointment.
9.8 The role and responsibility of the Australian Public Service Commissioner and the Merit Protection Commissioner
Where appropriate, the Director may decide to refer a suspected breach of the Code of Conduct to the Australian Public Service Commissioner or the Merit Protection Commissioner for investigation.
The Australian Public Service Commissioner can investigate alleged breaches of the Code of Conduct by the Director and other statutory office holders. The Australian Public Service Commissioner can also investigate, when requested to do so by the Director or the Prime Minister, alleged breaches by employees and former employees.
The Merit Protection Commissioner mainly has the role of reviewing a primary determination that a non-SES employee or former non-SES employee has breached the Code of Conduct. However, the Merit Protection Commissioner may also undertake an initial inquiry into a suspected breach of the Code of Conduct, with the consent of the Director and the employee. If the Merit Protection Commissioner performs the initial Code of Conduct inquiry, the employee, or former employee, will not have a right of administrative review. It is expected that the Merit Protection Commissioner would only conduct an initial inquiry in very limited circumstances. Generally, the Museum retains the responsibility for investigating misconduct in the first instance and the Merit Protection Commissioner retains responsibility for review.
PART B - INITIAL STEPS
10. Reporting suspected breaches of the APS Code of Conduct
Employees of the Museum may report a suspected breach of the Code of Conduct by:
- submitting a written complaint to their manager, supervisor, a member of the human resources team, or a member of the Executive;
- verbally advising their manager, supervisor, a member of the human resources team, or a member of the Executive of the suspected breach of the Code of Conduct;
- if the report relates to a suspected breach by the Director or a statutory office holder, submitting a complaint to the Australian Public Service Commissioner; or
- submitting an internal public interest disclosure.
In certain circumstances, the Museum is required to treat a report of an alleged breach of the Code of Conduct as a public interest disclosure for the purposes of the Public Interest Disclosure Act 2013 (PID Act). If the report is made to an authorised officer for the purposes of that Act, or to an employee's supervisor, the Museum will deal with the report in accordance with the Public Interest Disclosure Procedures. For further information, refer to the Museum's Public Interest Disclosure Procedures.
The Museum treats all suspected breaches of the Code of Conduct seriously. How the matter is handled will depend on the circumstances of each case.
Not all suspected breaches of the Code of Conduct are formally reported. A suspected breach of the Code of Conduct may be observed by a manager or another employee.
The Museum may decide to investigate suspected breaches of the Code of Conduct, even where it has not received a formal complaint or report.
11. Kinds of personal information collected and held
The Museum receives information about individuals who are alleged by complainants to have engaged in inappropriate conduct of some form. These reports about alleged misconduct may include a range of different types of personal information about:
- persons who are alleged to have engaged in misconduct;
- the person making the report; and
- witnesses and other third parties.
The types of allegations received by the Museum range from alleged breaches of the APS Code of Conduct to alleged criminal activity. Some allegations are unsubstantiated and some allegations are misconceived (ie the alleged conduct would not be inappropriate even if proven).
If an investigation is undertaken, further information may be collected during the investigation.
11.1 How information is collected and held
Information about alleged misconduct is provided to the Museum by complainants. Complainants may be APS employees, including employees of the Museum, or members of the public. The Museum may seek further information about allegations. If a formal investigation is conducted, further information may be collected from individuals in connection with the subject of a complaint or allegations.
Personal information relating to alleged misconduct and personal information about complainants is maintained on paper and electronic files and access is restricted to a very limited number of Museum employees whose duties require access to the information. Information in electronic records is maintained on the Museum's information and communications technology (ICT) infrastructure in accordance with the Museum's ICT security policies and practices.
11.2 Purposes of collecting, holding, disclosing and using personal information
Personal information relating to alleged misconduct is collected and held for the purposes of the Museum's statutory functions under the Public Service Act 1999, including the Director's functions as an agency head in respect of the Museum. Personal information in connection with disclosable conduct is collected and held for the purposes of the Museum's statutory functions under the PID Act.
In circumstances where the Director appoints an external investigator, personal information may be disclosed to the investigator for the purposes of conducting the investigation. Where the investigator is a contracted service provider, appropriate contractual arrangements are put in place to maintain confidentiality.
When allegations of misconduct are investigated, details of allegations may be disclosed to the subject of the allegations as well as relevant witnesses and third parties. Information about inappropriate conduct by APS employees in other agencies may be disclosed to the relevant agency head(s) in certain circumstances.
Information relating to a disclosure made under the PID Act is handled in accordance with the requirements of the PID Act. The PID Act includes criminal penalties for inappropriate disclosure of information relating to disclosures made under the PID Act.
11.3 Authority to collect personal information
The Director has statutory functions under the Public Service Act 1999 and the PID Act in relation to the collection and handling of information relating to alleged misconduct.
12. Informal or formal action? Whether to start a misconduct action
A decision-maker may decide whether to commence a misconduct action and instigate formal misconduct processes. Before a process reaches this stage, it is the responsibility of the manager or supervisor who first becomes aware of the suspected breach of the Code of Conduct to decide the best approach for handling the issue. Managers and supervisors may choose to resolve issues informally, if the matter is not deemed to be sufficiently serious to warrant a formal investigation process, and an informal resolution is considered appropriate, effective and timely.
Each case will be different and it is difficult to generalise the reasons why a process other than a formal misconduct process would be chosen. Depending on the seriousness of the conduct, the employee’s employment history and an assessment of whether the incident is likely to be an isolated occurrence, options such as counselling, performance management, training or mediation may be more appropriate. Informal options for resolution should be considered in the first instance, but do not need to be explored if a formal determination would be more appropriate in the circumstances.
Where a manager or supervisor decides to handle a suspected breach of the Code of Conduct using an informal process:
- the procedures in Part C will not apply; and
- there will be no determination in relation to whether the employee has breached the Code of Conduct.
Nevertheless, the manager or supervisor should keep a written record of the issue, the reasons for deciding to adopt an informal process and the steps taken to address the issue.
If an informal option is not appropriate, and the manager or supervisor suspects that a breach of the Code of Conduct may have occurred, they must refer the issue to a decision-maker for consideration.
If the matter is referred to a decision-maker for consideration, the decision-maker must:
- consider all of the information available relating to the suspected breach of the Code of Conduct;
- decide whether further information is required before making a decision to initiate a formal investigation;
- seek further information, (if required) so that a decision about whether a formal determination is necessary can be made;
- where the alleged conduct of the employee raises concerns that relate both to effective performance and to possible breaches of the Code, have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner for the purposes of clause 4.2 of the Australian Public Service Commissioner's Directions 2013;
- decide, based on the available information, whether to proceed to a formal investigation of the alleged breach of the Code of Conduct or use other, less formal processes for dealing with the suspected breach, if appropriate.
When considering whether to or not to use misconduct proceedings, the decision-maker must determine whether the allegations are sufficiently substantial as to warrant further investigation. The decision-maker does not need to establish whether the evidence establishes that a breach of the Code of Conduct has probably occurred.
The Director may choose to refer a suspected breach of the Code of Conduct to the Australian Public Service Commissioner or, with the consent of the employee or former employee, to the Merit Protection Commissioner for investigation. On referral, the APS Commissioner or Merit Protection Commissioner may decide to investigate the allegations or decline to investigate. The decision to refer a matter to either Commissioner is discretionary and whether the Director does refer the incident to either Commissioner will depend on the particular circumstances of the suspected breach.
13. Decision to reassign duties or suspend an employee
A decision-maker may decide to reassign an employee to other duties or suspend an employee with or without pay at any time prior to, or during, the process of determining whether a breach of the Code of Conduct has occurred and whether a sanction should be applied. Generally, a decision to reassign or suspend will occur at the same time as the decision is made to commence misconduct proceedings, however it may occur earlier if the nature of the allegations or circumstances are so significant that they may amount to gross misconduct or if it is considered that the safety of staff, visitors and/or property are in immediate danger.
In exercising these powers, it is important that the decision-maker does not prejudge, or be seen to prejudge, whether misconduct has occurred. In addition, reassignment or suspension are not to be used as sanctions.
13.1 Reassignment of duties
In considering whether the reassignment of duties is appropriate when an employee is suspected of breaching the Code of Conduct, the decision-maker must consider:
- whether it is in the Museum’s best interests for the employee to be reassigned duties;
- whether it is in the public’s best interests for the employee to be reassigned duties;
- the proposed period for reassignment;
- the duties and location for the reassignment;
- the capabilities of the employee being reassigned duties; and
- work availability for the employee being reassigned duties.
If a decision is made to reassign an employee to other duties prior to, or during the process of determining whether a breach of the Code of Conduct has occurred and whether a sanction should be applied, the decision-maker must:
- inform the employee of the proposal to reassign them to other duties in writing;
- advise the employee of the details of the proposed assigned role and relevant supervisory and reporting lines;
- advise the employee of the proposed period for the reassignment and recommended review date; and
- provide the employee with a reasonable opportunity to comment on the proposed reassignment of duties and to present in writing any information that should be taken into consideration by the decision-maker before any decision is made.
If the circumstances do not allow for an employee to have the opportunity to comment on a proposed reassignment of duties prior to a decision being made, the decision-maker must ensure that the employee is advised of the decision and relevant details and offered an opportunity to comment in writing on the reassignment decision. The decision-maker may choose (after considering any information provided by the employee) to consider other options, including suspension from duty.
13.2 Suspension from duty
The decision-maker may suspend an employee from duty, with or without pay, if there are reasonable grounds to believe that the employee has, or may have, breached the Code of Conduct and the employee’s suspension is in the public or the Museum’s interest.
Without limiting the circumstances in which suspension may occur, an employee may be suspended if the suspected breach would, if sustained, likely result in termination of employment, or if the employee’s presence in the workplace:
- involves an ongoing threat to the well being or safety of other Museum employees or visitors or damage to Museum property;
- could result in further breaches of the Code of Conduct;
- could prejudice or impede a criminal or other investigation; and
- has the potential to damage the public reputation of the Museum.
If the decision-maker determines that suspension from duty is appropriate, he or she must also decide whether the suspension is to be with or without pay. Factors to be taken into consideration when making this decision include:
- the seriousness of the suspected misconduct;
- whether suspension without remuneration would give the employee an added incentive to cooperate with the investigation; and
- the estimated duration of the misconduct action.
A decision to suspend must be reviewed at reasonable intervals and suspension without pay cannot be for more than 30 days, unless there are exceptional circumstances.
Exceptional circumstances are likely to include circumstances where:
- a strong prima facie case of serious misconduct is apparent;
- a finding has been made of a serious breach of the Code of Conduct and a sanction is yet to be imposed;
- an employee has been charged with a criminal offence and is waiting to have the charge heard and determined; or
- an employee has appealed against a conviction and is waiting to have the appeal heard.
If a decision is made to suspend an employee the decision-maker must:
- inform the employee of the proposal to suspend from duty in writing;
- inform the employee that the proposal to suspend is with or without pay;
- inform the employee that they are to advise the Museum of any changes to contact details whilst on suspension as soon as possible;
- advise the employee of the proposed period for the suspension and recommended review date;
- advise the employee about access to leave credits, access to Museum premises, access to Museum Information and Communications Technology (ICT) services, their status in respect of training, or other pre-arranged work activities, their entitlement to access outside employment and arrangements for the review of their suspension; and
- provide the employee with a reasonable opportunity to comment on the proposed suspension and to present in writing any information that should be taken into consideration by the decision-maker before any decision is made.
If the circumstances do not allow for an employee to have the opportunity to comment on a proposed suspension prior to a decision being made, for example if the employee has been suspended immediately for the safety of employees, the decision-maker must ensure that the employee is advised of the decision, reasons for the decision and other relevant details and offered an opportunity to comment in writing on the suspension decision. If an employee provides information or arguments that have a bearing on whether they should be suspended from duty, then the decision-maker should take that material into account when deciding whether to suspend the employee or when reviewing the decision.
An employee suspended on pay should continue to receive regular and routine allowances, penalties and loadings.
Suspension must immediately end:
- when the decision-maker no longer believes on reasonable grounds that the employee has or may have breached the Code of Conduct;
- it is no longer in the public or the Museum's interest to continue the employee's suspension; or
- when a sanction is imposed for breaching the Code of Conduct.
The decision-maker must inform the employee of the decision to cease the suspension in writing.
PART C – PROCEDURES FOR DETERMINING BREACHES OF THE CODE OF CONDUCT
This Part C sets out the procedures for determining whether an APS employee, or former APS employee, in the Museum has breached the Code of Conduct, established by the Director pursuant to section 15(3)(a) of the Public Service Act.
15. Initiating a Code of Conduct process
If the decision-maker decides to initiate a Code of Conduct process, he or she must:
- select and appoint a suitably qualified or experienced person who is, and appears to be unbiased, to undertake the investigation into the allegations of the suspected breach of the Code of Conduct; and
- determine whether the investigator is to be appointed to:
a) determine whether the employee or former employee has breached the Code of Conduct,
b) make recommendations about the proposed sanctions for an employee who is deemed to have breached the Code of Conduct; or
c) both of the above.
15.1 Notification to the affected employee(s) or former employee(s)
An employee suspected of breaching the Code of Conduct must be notified in writing as soon as practicable of the following:
- the details of the suspected breach of the Code of Conduct;
- the elements of the Code of Conduct that are relevant to the suspected breach of the Code of Conduct;
- the potential range of sanctions that may be imposed if the employee is deemed to have breached the Code of Conduct;
- the details of the investigator appointed to undertake the investigation;
- representational rights for the employee or former employee during the investigation process
- if relevant, any details relating to the proposed or actual reassignment of duties or suspension;
- details of the employee’s right of review for any decisions;
- that personal information about them may be disclosed to others where necessary and that any disclosure will be in accordance with the Privacy Act 1988;
- details of the Museum’s Employee Assistance Provider and the Museum’s Workplace Support Officer program; and
- any other directions in relation to the matter that the decision-maker considers appropriate.
Former employees suspected of breaching the Code of Conduct should also be notified in writing as soon as practicable. The former employee should be notified of the same information as provided to an employee, except the potential range of sanctions that may be imposed. Again, the decision-maker or investigator must take all reasonable steps to ensure that the former employee is provided with relevant information.
The decision-maker or investigator may choose to include additional information or documentation with the notification to the employee or former employee. That information may include:
- a copy of the Code of Conduct and these Guidelines;
- a copy of any documentation or material that the investigator may intend relying upon in making a decision or recommendation; and
- any other material or documentation relevant to the particular circumstances of the matter.
It is recommended that legal advice be sought when preparing the notification to an employee or former employee who is suspected of breaching the Code of Conduct.
15.2 Effect of ceasing employment
A decision-maker may still decide to commence an investigation into a suspected breach of the Code of Conduct even if a person’s APS employment has ceased.
15.3 Effect of inter-agency moves
A transfer or promotion of an employee to the Museum or from the Museum to another agency who is suspected of breaching the Code of Conduct and has been informed of the suspected breach and sanctions that may be imposed if the misconduct is proven, will not take effect until the matter is resolved unless the Director and the Agency Head of the gaining agency agree to the move taking effect at an earlier date. The matter will be deemed to be resolved when a determination is made or it is decided that a determination is not necessary.
15.4 Misconduct prior to engagement of APS employee
The Museum may investigate alleged misconduct which occurred prior to an employee's engagement in the APS in certain circumstances. If an employee:
- knowingly provided false or misleading information,
- failed to disclose information they knew or ought have known was relevant, or
- otherwise failed to behave honestly and with integrity,
in connection with their engagement as an APS employee, the Museum may choose to investigate the matter as a suspected breach of the Code of Conduct.
The Museum's recruitment procedures outline the requirement for the Human Resources Team to seek information from applicants about current or past investigations. It is expected that all candidates will make a full disclosure about such matters and failure to do so could be a breach of the Code of Conduct.
16. The investigation process
An investigator appointed by the Museum is to comply with these Guidelines, and any other specified terms and conditions contained within the terms of their appointment. In addition, it is expected that an investigator will uphold the APS Values, conduct the investigation consistent with the requirements of procedural fairness and other administrative law principles.
An investigator appointed by the Museum to investigate suspected breaches of the Code of Conduct will be undertaken by a suitably qualified or experienced person. All investigations should be carried out with as little formality as possible and completed in a timely manner.
The Museum recognises that, subject to the nature and complexity of matters related to suspected misconduct, the specific process and timeline for conducting a Code of Conduct may vary. Investigators appointed by the Museum must submit and have approved an investigation plan outlining details of the proposed approach to the investigation before any work commences. The plan is to include at least the following:
- proposed methodology for the investigation i.e how the investigation will be conducted;
- timeframes and dates for each key milestone and the estimated completion date; and
- details of witnesses to be contacted and estimated timeframes.
Any variations to this plan are to be submitted in writing to the Museum for approval. The investigation plan must also comply with the procedures set out in this Part C.
An employee, or former employee, suspected of breaching the Code of Conduct must be afforded the opportunity to respond to the allegation(s) against them, (either in writing or orally or both) and be provided with a reasonable opportunity to submit evidence that they consider relevant to their defence of the allegation. If after the initial notification to the employee, or former employee, the details of the suspected breach change, the employee or former employee, must be informed of the changes, provided with a copy of any relevant documents and invited to make a further submission.
16.1 Gathering evidence
An investigator can collect information from various sources, including written statements, interviews, documentation and/or physical evidence. Evidence discovered during the course of an investigation will only be collected or elicited by lawful and reasonable means.
If conducting interviews, the investigator must provide the interviewee with sufficient notice to allow for adequate preparation. A minimum period of two working days notice should be provided to the interviewee. The interviewee may request an extension of time to prepare for an interview. The investigator is to consider the need to be fair to the employee and the requirement for timeliness in completing the investigation when considering extension requests.
At the time of notifying the interviewee of the interview time, date and location, the investigator must also inform the person:
- that they are entitled to bring a support person to the interview;
- that they may submit relevant documentation for discussion at interview to the investigator prior to the interview; and
- to provide any relevant details of any need for reasonable adjustments to be made to allow them to participate in the interview (for example, a request for an interpreter to be present).
Prior to commencing the interview, the investigator must advise the interviewee:
- whether the interview will be recorded and their entitlement to be provided with a copy for their record;
- that a record of the discussion will be prepared and that they will be provided with an opportunity to verify the accuracy of their statement;
- that the record of interview will form part of the final report to be provided to the decision-maker; and
- that personal information relating to them may be disclosed to the employee and others where necessary and appropriate and that any personal information will be handled in accordance with the Privacy Act 1988.
If during the investigation process, the investigator becomes aware of information that requires further clarification, the investigator may re-interview a person in relation to those matters.
16.3 Written statements
An employee or former employee suspected of breaching the Code of Conduct may be invited by the investigator to submit a written response to the allegations. The written response may be in addition to an interview or instead of an interview, depending on the situation.
16.4 Preliminary view that a breach has occurred
If, after considering all available evidence, the investigator is of the view that, on balance, the employee or former employee is more likely than not to have breached the Code of Conduct, the investigator must inform the person in writing that they have formed a preliminary view that the Code of Conduct may have been breached. The written advice to the employee or former employee must include:
- a statement that a preliminary view has been formed that the employee or former employee has breached the Code of Conduct;
- the elements of the Code of Conduct that the investigator considers that the employee or former employee has breached (including any variations of those details); and
- the reasons for the preliminary conclusion.
The employee or former employee is to be provided with a period of seven days to respond to the report and provide any other information to the investigator for consideration before the determination is made about whether one or more breaches of the Code of Conduct have occurred. The employee or former employee is to be advised that the response to the preliminary finding is to be provided in writing. The investigator must take into consideration any information provided by the employee or former employee before making the determination. An employee or former employee may request in writing that the seven-day response period be extended if there are extenuating circumstances or there is insufficient time to respond to the preliminary finding(s).
An employee who does not make a statement in relation to the suspected breach is not, only for that reason, to be taken to have admitted committing the suspected breach.
16.5 Report of findings
The investigator is to provide the decision-maker who appointed them with a copy of a written report that:
- outlines the nature of the alleged misconduct;
- outlines the steps or process undertaken to collect evidence and information;
- presents the evidence in a balanced way, including the employee or former employee's response to the allegations and the employee or former employee’s response to any new or conflicting evidence that was uncovered in the course of the investigation;
- outlines the conclusions that are able to be made on the available evidence, including any inconsistencies in the evidence or issues that remain unclarified;
- makes a determination about whether the employee or former employee has breached the Code of Conduct and specifies which elements of the Code of Conduct have been breached or not and reasons why this conclusion has been reached. The balance of probabilities test is to be applied by the investigator when determining whether the employee or former employee has breached the Code of Conduct. The investigator must be satisfied that it is "more likely than not" that the breach occurred;
- makes recommendations (if engaged to do so) about the proposed sanctions for an employee who is found to have breached the Code of Conduct; and
- contain as appendices any statements or other material used to support the recommendations of the report.
17. Considering a determination in relation to suspected breaches of the Code of Conduct
17.1 No breach of the Code of Conduct
If the investigator has made a finding that there has been no breach of the Code of Conduct, the decision-maker must advise the relevant employee or former employee in writing of the outcome of the investigation and include reasons for the decision. The decision-maker may choose to provide the employee or former employee with a copy of the investigation report for their records.
The decision-maker may also advise complainant(s) in writing of the outcome of the investigation.
17.2 A breach of the Code of Conduct has been found
If the investigator has made a finding that a breach of the Code of Conduct has occurred, the decision-maker should write to the employee informing them of the investigator's final decision. The letter should:
- enclose a copy of the investigator's report;
- inform the employee of the person who will be determining the sanctions, reiterate the range of possible sanctions, and what the next steps of the process will involve; and
- notify the employee of their right to seek review of the findings under section 33 of the Public Service Act, noting that seeking a review will not operate to stay the finding of breach or consideration of the sanction.
PART D – PROCEDURES FOR DETERMINING SANCTION (IF ANY)
This Part D sets out the procedures for determining the sanction (if any) to be imposed on an employee in the Museum who is found to have breached the Code of Conduct, established by the Director pursuant to section 15(3)(b) of the Public Service Act.
19. Considering sanctions in relation to breaches of the Code of Conduct
If a determination is made that an employee of the Museum has breached the Code of Conduct, a decision-maker will need to consider whether a sanction is to be imposed on the employee.
The only sanctions available to a decision-maker are:
- termination of employment
- reduction in classification
- re-assignment of duties
- reduction in salary
- deductions from salary, by way of a fine
- a reprimand
A determination that misconduct has occurred does not necessarily mean that a sanction must be imposed. A decision can be taken that other remedial action may be appropriate. This should be documented as a managerial decision and not specified as a sanction.
The decision-maker may decide to impose one of the above sanctions or, where appropriate, a combination of the above sanctions (for example, reassignment of duties and a deduction from salary).
A sanction cannot be imposed on a former employee.
19.1 Factors to be considered by the decision-maker determining sanction(s)
Sanctions should be proportionate to the nature of the breach. The sanction should focus on the seriousness of what the employee has done, not the number of breaches.
In considering an appropriate sanction, the decision-maker should consider whether the employee has a history of misconduct. If the employee has a prior misconduct history, the decision-maker may consider:
- whether the employee should have been aware of the required standard of conduct and the potential consequences of misconduct or
- if the employee appears to demonstrate an unwillingness to adhere to the standard of conduct expected.
Nature and seriousness of the breach
The decision-maker considering possible sanctions should also take into consideration the nature and seriousness of the breach, including:
- the type of conduct involved (for example, discourtesy as compared to physical assault);
- amounts, values or quantities (for example, minor amounts of photocopying for personal use as compared to running a business using agency facilities);
- the period over which the misconduct occurred;
- evidence of any personal benefit from the breach; and
- the actual and potential consequences of the employee’s conduct.
The decision-maker considering possible sanctions should give consideration to the employment history of the employee and whether the conduct is uncharacteristic, including:
- the length of service of the employee;
- whether there are records of previous counselling about related issues;
- the extent to which the behaviour is atypical;
- the employee’s attempts to stabilise any personal situations impacting on work the (for example, by utilising the Employee Assistance Program); and
- other support or references from colleagues or supervisors.
Response to misconduct and the likelihood of a recurrence
The decision-maker considering possible sanctions should give consideration to how the employee has responded to the misconduct and the likelihood of there being a recurrence, including:
- whether the employee admits the breach, shows a willingness to take responsibility, shows remorse and understands the seriousness of the breach;
- cooperation during the investigation; and
- whether the employee has reflected on the action and how it can be avoided in the future.
Effect of the proposed sanction on the employee
The decision-maker considering possible sanctions should consider the effect of the proposed sanction on the employee including, but not limited to, any potential loss of earnings that have already been incurred by the employee as a result of any suspension.
A decision-maker should consider whether any mitigating circumstances warrant a lesser sanction than might otherwise be imposed. Examples of mitigating circumstances include:
- the degree of responsibility for the breach and whether there was any provocation, persuasion or coercion by others;
- the intention of the employee to breach the Code of Conduct. Whether the breach was premeditated or on the spur of the moment;
- the extent to which the employee's disability, health or other factors may have influenced their conduct;
- age, experience and length of service;
- level of guidance provided by the Museum on standards of conduct; and
- any procedural matters, including delays in the process.
19.2 Preliminary advice to the employee on proposed sanction(s)
Before a sanction can be imposed on an employee, the decision-maker must take reasonable steps to inform the employee in writing of:
- the determination;
- the sanction or sanctions that are under consideration; and
- factors that are relevant to the proposed sanction to be imposed.
The employee is to be provided with a period of seven days to respond to the proposed sanction and provide any other information to the decision-maker for consideration before a final decision is made about the sanction or sanctions to be imposed. The employee is to be advised that the response to the proposed sanction is to be provided in writing. The decision-maker must take into consideration any information provided by the employee before making a final decision in relation to a sanction or sanctions. An employee may request in writing that the seven-day response period be extended if there are extenuating circumstances. The decision-maker is responsible for documenting the reasons for the final decision on sanction and the date for it to come into effect. The decision-maker is to advise the employee in writing of the final decision in relation to sanction and the effective date.
20. Review of actions
Non-SES employees may seek a review of an action by a decision-maker in relation to matters relevant to suspected breaches of the Code of Conduct, determinations or sanctions, except termination of employment. The review provisions of the Public Service Regulations do not apply to termination of employment. The Museum's Enterprise Agreement and the Fair Work Act 2009 documents set out rights and remedies in relation to termination of employment. Applications for review should be directed to the Merit Protection Commissioner.
Former non-SES employees may also apply to the Merit Protection Commission for a review of a determination by the decision-maker, made after the affected former employee's employment ceased, that the former employee has breached the Code of Conduct.
21. Recordkeeping, record disposal and disclosure of misconduct information
Records of disciplinary action such as Code of Conduct investigations and their outcomes are regarded as personal information. They are subject to the Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988. Records of action under these Guidelines will not be placed on the employee's personal file but on a separate misconduct action or investigation file and the file will be classified as "Sensitive: Personal", held in secure storage and accessed only on a strict need to know basis. However, a cross-reference to the separate file should be recorded in the employee's personal file.
21.1 Retention and disposal
The employee's misconduct or investigation file will be disposed of in accordance with the relevant Australian archives disposal authority.
21.2 Access to and disclosure of misconduct information
The Museum will comply with the requirements of the Privacy Act 1988, Public Service Act 1999, and Public Service Regulations 1999, when managing access to and disclosure of misconduct information.
The Museum may use or disclose personal information (including information relating to a Code of Conduct matter), where it is necessary, and relevant to, the employer powers of the Museum, another APS agency head, the Australian Public Service Commissioner or Merit Protection Commissioner.
Public Service Act 1999
Public Service Regulations 1999
Australian Public Service Commissioner’s Directions 2013
Privacy Act 1988
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014
Public Interest Disclosure Act 2013
9 July 2014
Executive approval date
4 July 2014
Public and all staff
Code of Conduct, misconduct, suspension, breach
Code of Conduct Guidelines v1.0 17 May 2005
1 July 2015
Guidelines on preventing bullying and harassment in the workplace
National Museum of Australia
GPO Box 1901
CANBERRA ACT 2601
Tel: (02) 6208 5000
Approved by Executive 4 July 2014