Legal Briefing

Number 80

24 October 2006

Misconduct in the Australian Public Service

Paul Vermeesch Special Counsel Litigation
T 02 6253 7428 F 02 6253 7381
paul.vermeesch@ags.gov.au

The regime for dealing with misconduct is one element in the management of an efficient and effective Australian Public Service (APS).¹

The purpose of the misconduct regime is to protect the public, to maintain proper standards of conduct by members of the APS and to protect the reputation of the APS.²

Formal misconduct action is only one means of achieving these purposes. In some cases it is more appropriate to address conduct issues by means of other management action.

In particular, performance or medical problems which lead to conduct problems might be best addressed by management action other than misconduct action.

This briefing examines some key aspects of the misconduct regime.

Legislation

Public Service Act 1999

The employment of people in the APS is governed primarily by the Public Service Act 1999 (the PS Act). The PS Act provides the standards of conduct required by APS employees and the possible consequences of misconduct.³

Regulations and instruments

Also relevant to the misconduct regime for APS employees are:

• the Public Service Regulations 1999 (the PS Regs)
• instruments made under the PS Act:
• the directions made by the Public Service Commissioner under s 15(4), which set out the basic requirements for procedures for determining breaches of the APS Code of Conduct⁴
• the procedures made by each agency head under s 15(3) for determining breaches of the Code of Conduct in the agency.⁵

The PS Act replaced the Public Service Act 1922 (the PS Act 1922). The new misconduct provisions were intended to address deficiencies identified in the misconduct provisions of the PS Act 1922, which were seen as being:

• too complex and legalistic
• too heavily weighted on process and concepts similar to the criminal law
• out of touch with modern management philosophies
• concerned more with process than outcomes.

The misconduct provisions of the PS Act are intended to provide a means for new approaches for dealing with misconduct which:

• dispense with red tape
• ensure procedural fairness
• enable agency heads to adopt procedures appropriate for their agency.⁶

The APS Code of Conduct

The PS Act sets out duties of APS employees, breach of which can result in formal misconduct action.⁷ An APS employee is required to adhere to the Code of Conduct (the Code).⁸ The Code includes a requirement that an APS employee must at all times behave in a way that upholds the APS Values.⁹

An APS employee is liable to sanctions only if the employee has breached the Code.¹⁰

Persons bound by the Code

The Code by its terms applies only to an APS employee as defined by the PS Act.¹¹ This includes ongoing and non-ongoing employees. It also includes any Head of Mission who is an APS employee.¹² It does not include locally engaged employees (i.e. employees engaged overseas under s 74 to perform duties overseas).

By s 14, the Code also applies to other persons:

• an agency head¹³
• a person who holds any office or appointment under a Act that is prescribed by the PS Regs.¹⁴

Conduct in and outside the course of APS employment

As a general proposition, action against an employee for misconduct should be taken only where there is a sufficient degree of connection between the alleged misconduct and the employment.¹⁵ This is a question of fact and degree which will depend on the circumstances of each case. Under the general law this can involve consideration of whether the conduct is contrary to the employee’s duty of good faith and fidelity or is repugnant to the employment relationship.¹⁶

As noted, an APS employee is liable to sanctions only if the employee has breached the Code.

Sections 13(1)–13(4)

The conduct requirements in ss 13(1)–13(4) of the Code apply only where an APS employee is acting in the course of APS employment.

In the context of the Code, ‘the course of employment’ should be construed broadly. For example, it is not confined to performance of the tasks of the job.

An APS employee is engaged in conduct in the course of employment for the purposes of s 13 where the conduct is authorised expressly or impliedly, or is incidental to what the officer is authorised to do.¹⁷ Conduct in the course of employment will include conduct which is part of the employee’s functions as an employee.¹⁸ It can also include conduct in the purported performance of duties, even if not in fact authorised.¹⁹

Conduct outside the normal place of work and outside normal working hours can be conduct in the course of employment. For example, in some cases, an APS employee who engages in harassing behaviour at a social event organised or endorsed by the employer agency would be in breach of the requirement in s 13(3) that an APS employee, when acting in the course of APS employment, not harass others.

Sections 13(5)–13(13)

The conduct requirements in ss 13(5)–13(13) can potentially be breached by conduct of an APS employee outside the course of APS employment. However, the terms of these provisions are such that generally a breach will be in some way related to APS employment.

• Three of the conduct standards expressly require a relevant connection with APS employment.²⁰
• Section 13(11) requires that an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. Section 13(12) requires that an APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
• The other provisions of s 13 apply to certain specified conduct of an APS employee and will generally involve some connection to APS employment.²¹

In some cases, conduct which might on its face appear purely personal can involve a breach of the Code.

• Having contact with, or harassing, a fellow employee outside the workplace can be a breach of the Code where such conduct is contrary to a lawful and reasonable direction.²²
• Where a person is convicted of a criminal offence for conduct which is entirely unrelated to the workplace, this conduct might involve a breach of s 13(11) (e.g. dishonest conduct that is inconsistent with the APS Value that the APS has the highest ethical standards).

Pre-employment conduct

The APS Code of Conduct does not apply to any conduct which occurred before a person became an APS employee. For example, the Code does not apply to conduct of a prospective employee who provides false information in a pre-employment vetting process before becoming an APS employee.

Agencies can take measures to prevent this problem. For example, an agency can ask that when a person becomes an employee they confirm the correctness and completeness of any information provided in pre-employment vetting processes. Provisions of the Code will apply to the employee’s conduct in giving such a confirmation. Also, under s 22(6) an agency can make engagement conditional on the employee having provided complete and accurate information in pre-employment vetting processes. Failure to meet a condition of engagement under s 22(6) can render an employee’s employment liable to termination.²³

Elements of the Code

A failure to comply with any element of the Code can be a breach. For example, it would be a breach of s 13(1) of the Code if an APS employee either failed to behave with honesty, or failed to behave with integrity, in the course of APS employment. Similarly, it would be a breach of s 13(11) of the Code if an APS employee failed to behave in a way that upheld any element of the APS Values, or the integrity of the APS, or the reputation of the APS.²⁴

Intention not required

The criminal law commonly requires a mental element to establish an offence (e.g. that a person deliberately, knowingly, intentionally or recklessly did the relevant act). No mental element is required to establish a breach of the Code.²⁵

The Code applies according to its terms. The words of the Code do not have any technical meaning and they are not defined by the PS Act. They bear their ordinary English meaning in their context.

Comments on some provisions of the Code

Section 13(4) – compliance with laws

Laws covered by section 13(4)

Section 13(4) of the Code requires that an APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. Under s 13(4) Australian laws mean:

• any Act of the Commonwealth Parliament, or any instrument made under such an Act
• any law of a state or territory, including any instrument made under such law. These laws include any applicable legislation of a state or territory
• any applicable judge-made law.

The laws with which an APS employee must comply under s 13(4) include any applicable laws setting standards of conduct. This includes any statutory standard of conduct, including where the statute provides that a breach is a criminal offence.

Examples of laws covered by section 13(4)

For example, s 60 of the Financial Management and Accountability Act 1997 (the FMA Act) provides that an official must not use a Commonwealth credit card or number to obtain cash, goods or services otherwise than for the Commonwealth. Breach of s 60 is an offence.

Section 60 is an applicable Australian law for the purposes of s 13(4) of the Code. An APS employee when acting in the course of APS employment must comply with the conduct standard in s 60 of the FMA Act and is liable to misconduct action for any failure to comply with s 60.

Obligations imposed on APS employees by Acts which might be of particular interest to agencies include:

• obligations under the Occupational Health and Safety (Commonwealth Employment) Act 1991
• secrecy, non-disclosure or anti-browsing provisions in legislation
• the equitable obligation of confidence
• the implied obligation of loyalty and fidelity.²⁶

Code or criminal law action?

Where an APS employee engages in conduct which can be both a breach of the Code and a breach of the criminal law, the agency needs to make a management decision about the handling of the case. This includes a decision as to whether the matter should be referred to the Australian Federal Police (the AFP) and/or the Director of Public Prosecutions (DPP) for criminal investigation and/or possible prosecution. If a criminal investigation or prosecution takes place, the agency needs to consider whether it should proceed with misconduct action or should defer any such action pending the outcome of the criminal investigation or prosecution.

Section 13(5) – compliance with directions

Source of power to give directions

The employer agency has the power to issue directions to employees under s 13(5) of the PS Act. Section 13(5) provides that an APS employee must comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction. There is no provision of the PS Act which expressly authorises the giving of directions. Section 13(5) recognises that there is an implied power to give directions.²⁷

An express authorisation by the agency head for the issuing of directions is generally not necessary. A supervisor has implied authority to direct subordinate staff. An employee with functional responsibility for a particular matter generally has implied authority to give directions relevant to that matter.

Scope of directions

The usual test applied under contract law is that a direction is lawful if it involves no illegality and if it is within the subject matter of the employment or within the scope of the contract of service. The test for the lawfulness of an employer direction to an APS employee can be broader than this usual contract test.²⁸ Whilst public servants are in an employment relationship, that relationship has a constitutional and statutory setting which includes values and interests which go beyond bare matters of employment. A direction to an APS employee can be lawful if it involves no illegality and if it is reasonably adapted to protect the legitimate interests of the Commonwealth as employer or to discharge the obligations of the Commonwealth as an employer. Also, the direction must be reasonable in all the circumstances.²⁹

Regulation 2.1 – duty not to disclose

A new regulation 2.1 was inserted by Public Service Regulations 2006 (No. 1) with effect from 15 July 2006.

The amendments to reg 2.1 which were inserted by Public Service Amendment Regulations 2004 (No. 2) were disallowed with effect from and including 16 June 2005. This amended version of reg 2.1 was in force in the period 23 December 2004 to 16 June 2005.

The provisions of reg 2.1 in force before 23 December 2004 and in force in the period between 16 June 2005 and 14 July 2006 were in the same terms as a provision under the Public Service Regulations 1922 which has been held invalid by the Federal Court.³⁰

Decision makers

Potential decision-making roles

In any misconduct process the following statutory decision-making roles might be required to be performed within an agency:

• suspension from duties and review of suspension under reg 3.10
• determination of breach
• imposition of sanction
• review under s 33 of suspension decisions or possibly other APS action in the misconduct process preceding decisions on issues of breach or sanction.³¹

Subject to the terms of the agency’s s 15(3) procedures, it is possible for the one person to have the role of being decision maker in relation to both breach and sanction. Some s 15(3) procedures require separate processes and separate decision makers. Even where it is permissible to have one decision maker for both tasks, it can in some cases be desirable to have different decision makers in order to avoid any possible perception of bias.

It is generally desirable that the suspension delegate be a different person to the decision maker or delegate in relation to breach and/or sanction. Also it is generally desirable that a s 33 review delegate not have had any previous involvement.

Steps should be taken to ensure that the relevant decision makers have lawful power to make the decision and that they are independent and unbiased.

Lawful selection of decision maker on breach

A person who determines whether or not there has been a breach of the Code must be selected in accordance with relevant provisions in the procedures of the agency under s 15(3) of the PS Act. The procedures will generally determine who makes the selection and how the selection is made (e.g. whether it needs to be in writing).

In the absence of provisions in the procedures about selection of decision makers to determine breach, the decision maker in relation to breach will need to be authorised by the agency head to perform the role. Such an authorisation should be in writing, signed by the agency head.

Section 15(3) procedures commonly permit any person to be selected as the decision maker in relation to breach. In this case, it is not necessary that the person be an APS employee within the agency or elsewhere. They can for example be a consultant who is not employed in the APS.

A decision maker in relation to breach does not exercise delegated power. Provisions in the section 15(3) procedures about selection of decision makers to determine breach are a mechanism by which a person can be authorised to determine breach. They are not a mechanism for delegation.

The power to determine breach is separate and distinct from the power to impose sanction. A person who is a delegate of the powers of the agency head under s 15(1) of the PS Act to impose sanction is not thereby authorised to determine breach. Even though it is possible for the one person to be authorised to be the decision maker to determine breach and to be delegated power to impose a sanction, care needs to be taken to ensure that the person has the respective authorisation and delegation.

Delegates

A person who makes decisions about suspension, including by way of review of a suspension under reg 3.10 of the PS Regs, must be a delegate of the powers of the agency head under reg 3.10.

A person who imposes a sanction must be a delegate of the powers of the agency head under s 15(1) of the PS Act. If a sanction of termination is imposed, it is desirable that the person also be a delegate of the powers of the agency head under s 29. This will ensure that the delegate has authority to both determine the sanction of termination of employment and give notice of termination of employment.

A person in an agency who exercises review functions must be a delegate of the powers of the agency head under reg 5.27 of the PS Regs.

Limitations on delegations – outsiders

Where delegations are being made in accordance with s 78 or reg 9.3, agencies must ensure compliance with the limitations on delegations set out in those provisions. In particular, a delegation cannot be made to an ‘outsider’ except with the prior written consent of the Public Service Commissioner. An outsider is defined to include any person who is not an APS employee or not a person appointed to an office by the Governor-General, or by a minister, under a law of the Commonwealth.

Bias issues

The minimum requirement in the Public Service Commissioner’s Directions is that the person who determines whether or not there has been a breach of the Code be independent and unbiased. Also, any decision maker in relation to misconduct matters must comply with the administrative law requirement that they not be biased.

Administrative law requires that a decision maker be free from actual bias or any reasonable apprehension of bias. Actual bias occurs where the decision maker has a partial mind. The test for reasonable apprehension of bias is whether a hypothetical fair-minded person, properly informed of relevant circumstances, might reasonably apprehend that the decision maker might not have brought an impartial mind to the decision. This issue is one of perception but is determined objectively by a court.³²

A reasonable apprehension of bias can arise where it can reasonably be seen that a decision maker has an interest in the outcome ³³ or has previously expressed a concluded view on a matter that needs to be determined.³⁴ It can arise where a superior officer has expressed a view about what the outcome should be, or which is critical of the relevant employee.³⁵ It can also arise where the decision maker has had access to prejudicial information not relevant to the matters to be determined but which could reasonably be seen as influencing the decision maker’s views.³⁶

Suspension from duties

Possible reassignment

When considering suspension from duties,³⁷ consideration should also be given to the possibility of assignment of other duties under s 25.³⁸ Suspension should generally be regarded as a last resort.

The power under s 25 should otherwise be exercised only for operational reasons and not, in effect, as a means of imposing a sanction.³⁹

Review of suspension

A review under reg 3.10 is a review of the suspension. It is a fresh decision as to whether the employee should continue to be suspended having regard to the statutory preconditions for suspension and all relevant material then available. A review of suspension under reg 3.10 is not a review of the original decision to suspend.

Procedural fairness in the suspension process

Regulation 3.10(7) enables the delegate to determine whether or not to discharge procedural fairness requirements. It permits the delegate to dispense with procedural fairness requirements in appropriate circumstances. If the delegate makes a decision under reg 3.10(7) that it is appropriate not to accord procedural fairness, then this should override any procedural fairness obligations that would otherwise apply. There must of course be a reasonable basis for the delegate to be so satisfied. Such cases will be unusual.⁴⁰

It might be appropriate not to accord procedural fairness in circumstances where there is urgency or some overriding public interest, for example, safety concerns.⁴¹ Even in such cases, an opportunity to comment might properly be provided after the initial suspension, and any comments taken into account on a review of the suspension.

Where a delegate considers that procedural fairness should not be accorded, it is good practice for the delegate to record why, and to the extent possible, give the affected employee notice of the delegate’s reasons.

Not suspending

Where an employee is suspected of serious misconduct of the kind that would warrant termination of employment if established, it is generally appropriate to suspend the employee from duties. The mere fact that an employee is not suspended, however, does not necessarily mean that they cannot properly be subject to a sanction of termination of employment.⁴²

Effect of suspension – payment of salary

Under general law a suspension from duty has the effect of suspending most incidents of the employment relationship, including payment of salary. However the PS Regs make specific provision for the possibility of suspension with remuneration.

Process for determination of breach issues

Section 15(3) procedures

A sanction for misconduct can be imposed only if there has been a determination of breach of the Code made in accordance with procedures determined by the agency head in accordance with section 15(3) of the PS Act.

Under s 15(3) of the PS Act, agency head procedures:

• must comply with basic procedural requirements set out in the Public Service Commissioner’s Directions
• must have due regard to procedural fairness
• may be different for different categories of APS employees.⁴³

Agency heads must also take reasonable steps to ensure that every employee in their agency has ready access to the documents that set out these procedures.⁴⁴

Commissioner’s Directions

Chapter 5 of the Directions includes the following basic requirements for procedures for determining breaches of the Code.

• Before any determination is made in relation to a suspected breach of the Code, the employee must be informed of the details of the suspected breach and the range of sanctions that may be imposed should there be a determination that the employee has breached the Code. The employee must be given a reasonable opportunity to make a statement in relation to the suspected breach.⁴⁵
• The determination process must be as informal as possible.⁴⁶
• The agency head must take reasonable steps to ensure that the person making the determination is independent and unbiased.⁴⁷
• A written record of the determination must be made stating whether the employee has been found to have breached the Code.⁴⁸

Contents of procedures

Procedures under s 15(3) are procedures for determining a breach of the Code. The procedures are legally confined to these matters. Also, as the procedures are legally binding, they should include only those requirements with which an agency is prepared to comply as a matter of law. It is generally desirable that the procedures determined under s 15(3) should not include guidance of the kind more appropriate for inclusion in a manual or instructions for decision makers or employees generally.

Certified or collective agreement

A certified or collective agreement should not include any provisions about misconduct matters unless an agency is prepared to be bound by those provisions. If provisions about misconduct matters are included in an agreement, a breach of those provisions can render the agency liable to penalties imposed under the Workplace Relations Act 1996 (WR Act) or to grievance proceedings in the Australian Industrial Relations Commission in accordance the WR Act.⁴⁹

Adherence to procedures

It is generally desirable to strictly adhere to procedures under s 15(3).

A failure to comply with procedures under s 15(3) can be a breach of administrative law requirements, which renders a decision liable to be set aside on judicial review as invalid. Not every breach will result in invalidity.

It is a matter of statutory construction for a court to determine which breaches (if any) are intended by the s 15(13) procedures and PS Act to result in invalidity.⁵⁰

A failure to comply with the procedures generally will not itself lead to a finding that a termination of employment was harsh, unjust or unreasonable.⁵¹ Generally the AIRC will uphold a termination of employment which is a fair outcome overall, despite a failure to comply with some procedural requirements.

Some procedural issues ⁵²

Concurrent criminal proceedings

Where the conduct in question involves a possible criminal offence, as well as breaches of the Code, there is no automatic rule that administrative action must await the outcome of the criminal proceedings. The fact that the employee chooses not to provide evidence or submissions in a misconduct process because of a concern to protect rights in relation to a current or possible future criminal process (such as the right to silence or the privilege against self-incrimination) does not prevent a misconduct process from proceeding.⁵³

Agencies may exercise a discretion to postpone a Code investigation in appropriate circumstances.

An agency generally should not proceed with any misconduct action if the police or prosecuting authorities consider that it would involve any prejudice to a criminal investigation or prosecution. If an agency takes action which prejudices a prosecution this could be a contempt of court.

Standard of proof

The standard of proof in determining misconduct matters is the ordinary civil standard of the balance of probabilities.

However, the more serious the alleged breach, and the more serious the possible consequences of the alleged breach, then the higher the level of satisfaction required.⁵⁴

Right to silence

Under the common law there is a general privilege of silence which operates unless qualified by law. The employment relationship qualifies the privilege of silence and creates a legal right for an employer to ask questions, or direct the answering of questions. The employment relationship imposes a legal duty requiring an employee to answer employer questions, where the matters are work related and it is otherwise reasonable.⁵⁵ However, this is subject to the employee’s privilege against self-incrimination and the privilege against exposure to penalties.

Misconduct processes are generally conducted on the basis that the answering of questions is voluntary.

The fact that an employee chooses not to provide evidence or submissions in a misconduct process does not itself establish a breach of the Code.

Privileges against self-incrimination and self-exposure to penalty

An APS employee who is requested to provide information in a Code of Conduct process (whether documentary or oral information) is entitled to decline to provide the information on the basis of the privilege against self-incrimination or the privilege against self-exposure to penalty. APS employees cannot be required to answer questions or to provide information which would tend to incriminate themselves or expose themselves to a disciplinary sanction. Any direction purporting to require an employee to answer questions or provide information in such circumstances would not be a lawful and reasonable direction.

In Police Service Board v Morris ⁵⁶ the High Court held that the privilege against self-exposure to a penalty was capable of applying to a statutory provision which required members of the police force to answer questions tending to show that they had committed disciplinary offences. By analogy, the privilege against self-exposure to penalty would be capable of applying to an APS misconduct process.

In Re Comptroller-General of Customs v Disciplinary Appeal Committee and Another⁵⁷ (Day) the Federal Court (Gummow J) held that the privilege against self-incrimination was applicable to disciplinary action under the then PS Act 1922.⁵⁸ On this approach the privilege would be applicable to misconduct action under the current PS Act.

There is nothing in the PS Act to abrogate the privilege against self-incrimination or the privilege against self-exposure to penalty.

Some recent decisions of the High Court suggest that the privilege against self-incrimination and the privilege against self-exposure to penalty are not substantive rules of law, and that they are applicable only in judicial proceedings.⁵⁹ On this approach, the privilege could not be claimed in a misconduct process in the APS. However, the Court has not overturned the decision in Morris or Day. Until the Court does so, it should be assumed that the principles set out in Morris and Day remain good law.

The privilege against self-incrimination extends to the making of a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character. The privilege is available if there is a reasonable ground to apprehend danger of incrimination to the individual concerned if they are compelled to answer.

Procedural fairness

Employees are entitled to have a reasonable opportunity to make their case before any decision is made that they have breached the Code or that a sanction should be imposed. The procedures set out in the PS Act and Regs and instruments made under them are not an exclusive code which exhaustively sets out procedural fairness requirements.⁶⁰ For example, the giving of notice to an employee of the suspected breaches of the Code in accordance with requirements under the APS Commissioner’s Directions and Agency Head Procedures by itself does not necessarily ensure that procedural fairness is afforded. The steps that will discharge procedural fairness obligations will depend on the circumstances of each case.

Decision to institute a misconduct process

Procedural fairness obligations do not apply to a decision to institute a process for determining whether there has been a breach of the Code.⁶¹

No right to cross-examination

A person making a decision about issues of breach of the Code or sanction have no general power to require the giving of oral evidence and the submission of witnesses to cross-examination. The decision makers therefore have no procedural fairness obligation to require cross-examination of witnesses but should nevertheless appropriately test evidence where necessary.⁶²

No right to legal representation

Decision makers in misconduct processes are not obliged by administrative law requirements to permit legal representation.⁶³ However, procedures made under s 15(3) of the PS Act can make provision for representation or support of employees who are subject to a misconduct process.

Reasons for decision

Administrative Decisions (Judicial Review) Act 1977

Decisions that an APS employee be suspended from duties, has breached the Code, or should be subject to a sanction are decisions to which the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) applies. The affected APS employee is entitled to request under the AD(JR) Act that a statement of reasons be provided. Where such a request is made, the decision maker is obliged to provide a statement of reasons in the form required by s 13 of the AD(JR) Act. Section 13 requires the provision of a statement which sets out findings on material questions of fact, refers to the evidence or other material on which the findings were based, and gives reasons for the decision. There are no relevant exclusions under the AD(JR) Act.

Section 15(3) procedures

Where procedures under s 15(3) of the PS Act require that a decision maker provide a statement of reasons, then, unless a contrary intention appears in the procedures, the decision maker should provide a statement which sets out findings on material questions for fact, refers to the evidence or other material on which those findings were based, and gives reasons for the decision.⁶⁴

Cessation of employment

The misconduct regime under the PS Act applies only to an APS employee. No misconduct action under the PS Act (i.e. action by way of finding of breach or imposition of a sanction) can be taken when a person is not an APS employee.

In the absence of any relevant provision in the terms and conditions of employment, including in any industrial instrument, an ongoing APS employee has a right to resign, provided that reasonable notice is given. The right of an ongoing employee to resign is not subject to the consent of the employer.⁶⁵ Two weeks notice would generally be regarded as reasonable. The employer can agree to shorter notice. For example, an employer can accept a resignation with immediate effect.

The fact that a person ceases to be an employee does not prevent the agency from completing documentation of its concerns or its investigations. Such information can be retained on the relevant file, subject to any obligation to destroy misconduct records.⁶⁶

Where such information is available, it can potentially be considered in any future employment vetting process if the person again seeks employment with the APS. Such information might be relevant to an assessment conducted in accordance with the merit principle (for example, it might be relevant to the person’s ability to perform the duties of the position). Alternatively, it might be relevant to the person’s satisfaction of any conditions of engagement relating to character or security.

Sanction

Any sanction which is imposed must only be in respect of the conduct found to have been in breach of the Code. Thus the primary focus of the sanction decision maker must be on the misconduct which was engaged in by the employee (as found in the decision on breach).

The appropriate sanction in any case will be the sanction which the decision maker considers meets the object of imposing a misconduct sanction, which is not to punish or exact retribution but to protect the reputation of the APS and ensure adherence to proper standards of conduct.⁶⁷

Since the objectives of the APS misconduct regime are to protect the public and maintain proper standards of conduct, it is relevant to have regard to the need for both specific and general deterrence.

Factors relevant to the assessment of sanction will include all matters relevant to adherence of proper standards of conduct in the APS, and may include a range of factors (apart from the actual misconduct which was engaged in by the employee) particular to the individual employee and the circumstances of the case.

Avenues of review

Review of actions

The review of action provisions of the PS Act and Regs are capable of application to all actions in a misconduct process. The affected employee may apply directly to the Merit Protection Commissioner for review of a determination that the employee has breached the Code, and for review of a sanction imposed for breach of the Code, other than a sanction of termination of employment.⁶⁸

The making of an application for review of an APS action does not operate to stay the action.⁶⁹ For example, an employee can seek review of a breach determination without first awaiting a decision on sanction but this does not prevent a decision being made about sanction.

If a sanction of termination is imposed, we understand that the usual practice of the Merit Protection Commissioner is to decline to review any related breach determination which is the subject of an application for review.

The Australian Industrial Relations Commission

APS employees whose employment is terminated for breach of the Code have a right to seek relief under the WR Act (subject to exclusions under that Act), including relief on the ground that the termination was ‘harsh, unjust or unreasonable’.

The AIRC can find that termination was harsh, unjust or unreasonable in the following circumstances:⁷⁰

• the employee was not guilty of the misconduct on which the employer acted (having regard to the evidence before the Commission, not just the evidence before the employer decision maker)⁷¹
• the termination was decided on inferences which could not reasonably have been drawn from the material be-fore the employer
• the sanction is disproportionate to the gravity of the misconduct
• the sanction is harsh in its consequences for the personal and economic situation of the employee.

The AIRC has upheld terminations of employment for the following employee misconduct:

• bullying behaviour over an extended period⁷²
• failing to disclose previous misconduct and previous dismissal⁷³
• using a Commonwealth credit card for personal use⁷⁴
• providing false and misleading information in security clearance interviews and failing to disclose to the vetting officer a sexual relationship of possible concern from a security viewpoint⁷⁵
• using departmental computer facilities to falsify football tipping records and falsely win the competition, then providing false and misleading explanations to departmental investigators⁷⁶
• providing information to a person taken from confidential departmental files⁷⁷
• unauthorised access of tax file records and subsequent conviction in the Brisbane Magistrates Court on one criminal charge of forgery and five charges against the Income Tax Assessment Act⁷⁸
• unauthorised access to the computer records of clients and conviction on three counts of intentionally and without authority obtaining access to personal and financial information in relation to three named clients of the Department⁷⁹
• sending 23 inappropriate emails, including pornographic or otherwise sexually explicit images, to other employees and to external recipients⁸⁰
• harassing fellow employees and managers by making false allegations against them, and engaging in other inappropriate behaviour.⁸¹

Where the AIRC finds that termination of employment is unfair, it can order reinstatement and can order payment of compensation, where appropriate. It can decline to order reinstatement where, for example, it accepts evidence that the employment relationship had irrevocably broken down.⁸²

Judicial review

Employment decisions under the PS Act are subject to the usual administrative law requirements, including a requirement that employees be afforded natural justice in decision making. An employee can seek judicial review under the general law⁸³ or under the AD(JR) Act.

Workers’ compensation

The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides for compensation to be paid to Commonwealth employees when they suffer an injury or disease arising out of, or materially contributed to, by their employment. The SRC Act is administered by Comcare.

Under the SRC Act, injuries or diseases which are the result of reasonable disciplinary action are excluded from compensation.⁸⁴

The courts and AAT have been restrictive in determining what amounts to ‘reasonable disciplinary action’. Broadly speaking, steps taken prior to formal disciplinary action, including investigation of possible breaches of the Code, have been held to not amount to reasonable disciplinary action.⁸⁵ The exclusion in the SRC Act for reasonable disciplinary action might not apply until the point when there is a determination of breach and/or a sanction is being imposed for a breach of the Code.⁸⁶

Paul Vermeesch works extensively in misconduct matters, assisting clients to manage misconduct processes and make decisions, and to deal with legal challenges.

Notes

1. See the objects of the PS Act set out in s 3.
   
   Under the PS Act 1922 the legislation referred to the disciplining of public servants for misconduct. The current legislation no longer issues the term ‘discipline’. Hence the general practice, which is reflected in this briefing, of referring to a conduct/misconduct/Code of Conduct matter, rather than a discipline matter. However, as a matter of normal English usage it is correct to describe the regulation of conduct of APS employees under the PS Act 1999 as a discipline regime.
   
   Some caution needs to be exercised when considering whether case law about discipline under the PS Act 1922 has application to current provisions. Note that most of the APS case law referred to in this paper concerns the PS Act 1922.
   
   
2. See the objects set out in s 3, the Code of Conduct in s 13 and the APS Values in s 10.
   
   Having regard to the objects of the PS Act 1999, the provisions of the Code (in particular those concerned with the integrity and reputation of the APS) and the special role of the APS in serving the government and the public, it is submitted that the purpose of the misconduct regime under the PS Act 1999 is protective (i.e. to protect the public, maintain proper standards and protect the reputation of the APS. Compare Duhbihur v Transport Appeal Board [2005] NSW SC 811 where the New South Wales Court of Appeal held that a so called ’discipline’ regime applicable to state rail workers was not protective, because their work involved no relevant public interest.
   
   See also, for example, Bragg v Secretary, Department of Employment, Education and Training (unreported, Federal Court of Australia, Davies J, NG 790 of 1995, 8 June 1995) adopting the decision of the Full Federal Court in Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597. See also McManus v Scott-Charlton (1996) 70 FCR 16 at 25, where it was held that the purpose of the statutory regulation of the conduct of public servants in the APS is to ensure continued public confidence in the integrity of the public service and public servants in the APS and to secure values proper to be required of a public service in the Australian system of government.
   
   
3. The misconduct regime under the PS Act 1922 was a code in relation to discipline matters: James v McDonald (unreported, Federal Court of Australia, Sackville J, NG 631 of 1994, 21 October 1994). However, it did not exclude the exercise of non discipline powers available under the PS Act 1922 or the general law, where such powers are properly available and are not impermissibly used for a discipline purpose: Gaisford v Fisher (unreported, Federal Court, Finn J, ACTG 27 of 1996, 29 November 1996); Fisher v Gaisford (1997) 48 ALD 200. See also Bromet v Oddie [2003] FCAFC 213 at [115]–[116].
   
   
4. See Chapter 5 of the Public Service Commissioner’s Directions 1999. Section 42 of the PS Act sets out some limitations on the contents of the Commissioner’s Directions under s 15(4). The ‘Commissioner Directions’ referred to in s 42 are defined by s 7 to include the directions under s 15.
   
   
5. Section 15(3) of the PS Act requires that the procedures in each agency must conform with the minimum requirements set out in the Public Service Commissioner’s Directions.
   
   
6. Paragraph 3.20.4 of the Explanatory Memorandum to the Public Service Bill 1999 (Senate).
   
   
7. The PS Act does not exclusively determine the standards of behaviour of APS employees. APS employees are subject to other legal obligations about their conduct, for example, under both statute and contract law. For example, APS employees are subject to obligations such as the duty of good faith and fidelity: see Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 at 335 [117]. Breach of these obligations imposed by other laws can be a breach of the APS Code of Conduct under s 13(4) of the PS Act.
   
   
8. Section 13 of the PS Act sets out the Code.
   
   
9. See s 13(11) of the PS Act. The APS Values are set out in s 10. Under s 11(2) of the PS Act, the directions of the Public Service Commissioner made under s 11(1) can restrict the effect of the APS Values. There are presently no such restrictions.
   
   
10. See ss 15 and 29(3)(g) of the PS Act.
    
    
11. An APS employee is defined by s 7 of the PS Act, unless the contrary intention appears, to mean a person engaged under s 22 or a person who is engaged as an APS employee under s 72. Section 22 provides that an agency head on behalf of the Commonwealth, may engage persons as employees for the purposes of the agency. Section 72 vests powers in the Public Service Commissioner to deal with machinery of government changes. These include:
    • engaging a person as an APS employee in a specified agency
    • determining that a non-APS employee ceases to be employed as a non-APS employee and becomes engaged as an APS employee in a specified agency.
12. See s 39.
    
    
13. An ‘Agency Head’ is defined by s 7 to mean the ‘Secretary of a Department, the Head of an Executive Agency or the Head of a Statutory Agency’. All those terms are themselves defined in s 7.
    
    
14. See s 14(3). Regulation 2.2 prescribes certain persons for the purposes of the definition of statutory office holder in s 14(3). They include certain persons who exercise direct or indirect supervisory duties in relation to APS employees. These persons are bound by the Code when acting in relation to the exercise of such duties.
    
    
15. See, for example, Coward v Gunns Veneer Pty Ltd [1997] FCA 1341.
    
    
16. See, for example, cases dealing with termination of employment for conduct outside the workplace: Fraser v Transport Accident Commission (unreported, Industrial Relations Court of Australia, Murphy JR, VI 1185 of 1997, 5 August 1997); Rose v Telstra (unreported, Australian Industrial Relations Commission, VP Ross, Q9292 , 4 December 1998); Farquharson v Qantas Airways [PR965161] AIRC (15 November 2005); [PR 971685] AIRC Full Bench (10 August 2006).
    
    
17. See Day v Douglas [1999] FCA 1444 and on appeal Commonwealth v Day [2000] FCA 474 concerning the discipline provisions of the PS Act 1922 relating to ‘improper conduct as an officer’. Compare workers’ compensation cases: Kavanagh v Commonwealth (1960) 103 CLR 547 at 559; Commonwealth v Oliver (1962) 107 CLR 353 at 358; Commonwealth v Lyons (1979) 24 ALR 300 at 301.
    
    
18. Compare Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1.
    
    
19. Day v Douglas at [32] and Commonwealth v Day at [16]. Producing a Customs identification card can establish that the officer purports to be carrying out official duties. In such circumstances, the officer can be found to be acting as an officer, even though the officer maintains the conduct was purely personal and even though the employer maintains the conduct was not authorised.
    
    
20. Section 13(7) is concerned with conflicts of interest in connection with APS employment. Section 13(9) is concerned with requests for information made for official purposes in connection with employment. The duty not to disclose information under reg 2.1 (which is made for the purposes of s 13(13)) applies to information which an APS employee obtains or generates in connection with the APS employee’s employment.
    
    
21. The relevant provisions are ss 13(5), (6), (8), (10) and (13). Section 13(13) provides that an APS employee must comply with any conduct requirement that is prescribed by the Regulations. The only prescribed conduct is the duty not to disclose information, which is set out in reg 2.1 of the PS Regs.
    
    
22. In a case where harassment of one employee by another outside of work arose from the work relationship and had an adverse impact within the workplace, a direction prohibiting contact outside work was held by the Federal Court to be lawful and reasonable: McManus v Scott-Charlton (1996) 140 ALR 625.
    
    
23. See s 29(3)(g) of the PS Act.
    
    
24. See Rothfield v Australian Bureau of Statistics [PR 927240] AIRC (3 February 2003) where Senior Deputy President Lacy held that the provisions in s 13(3) should be read disjunctively.
    
    
25. Compare O’Connell v Palmer (1994) 53 FCR 429 where the Full Court of the Federal Court held that it is not a necessary element of a charge of improper conduct under the disciplinary regime in the Australian Federal Police that the officer concerned was aware that what they were doing would be regarded as improper. See also Bercove v Hermes (No. 3) (1983) 74 FLR 315 where a Full Court of the Federal Court held that it was open to find that a public servant infringed the proscription against improper conduct even though the employee believed in the ‘legitimacy and propriety’ of the employee’s actions. The Full Federal Court supported the approach adopted by the judge at first instance (in Bercove v Hermes (1983) 67 FLR 186 at 195) that the propriety of the actions of a public servant should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public.
    
    
26. The Federal Court has recognised that APS employees owe to the Commonwealth an obligation of good faith and fidelity. The content of the duty is rather vague. It depends on the circumstances of each case and can vary from one class of employee to another. See Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 at [117] to [127]. The decision concerned the PS Act 1922, but the principles should apply equally under the current PS Act.
    
    
27. It has been held that the source of the power to give a direction is the contract of employment, not statute. Thus the decision to give a direction is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies: Bayley v Osborne (1984) 4 FCR 141 at [33].
    
    
28. See McManus v Scott-Charlton (1996) 70 FCR 16. The case concerned a direction given to an employee that the employee not contact a co-employee outside the requirements of the performance of duties. The direction applied to private conduct. The direction was given in circumstances where there was harassment by the employee of the co-employee. The Court held that the direction was lawful as it was employment related (because the harassment could reasonably be said to be a consequence of the relationship of the parties as co-employees) and the harassment had, and continued to have, substantial adverse effects on workplace relations, workplace performance, and the efficient and proper conduct of APS business.
    
    
29. See McManus v Scott-Charlton (1996) 70 FCR 16. A direction involves illegality if it is contrary to law. For example, a direction will not be lawful if its nature is such that it would unnecessarily or unreasonably impair the freedom of communication about government and political matters protected by the Constitution: see Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 at [81].
    
    
30. See Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334. The provision was held invalid on the basis that it infringed the implied constitutional freedom on communication on political matters. See Australian Public Service Commission Circular No. 2005/3 (2005).
    
    
31. See also reg 5.27. There is no review within the agency of a decision that there has been a breach of the Code or a decision to impose a sanction. Such decisions are reviewed directly by the Merit Protection Commissioner. See reg 5.24(2).
    
    
32. Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438.
    
    
33. In Scott v Centrelink [PR 907822] AIRC (16 August 2001) the AIRC held that a reasonable apprehension of bias arose where the decision maker determining whether an employee had breached the Code by failing to follow a direction was the supervisor who had given the direction. The employee was reinstated for this and other reasons.
    
    
34. Gaisford v Hunt (1996) 71 FCR 187.
    
    
35. Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57; Mongan v Woodward [2003] FCA 66 (12 February 2003).
    
    
36. See Bohills v Friedman (2001) 110 FCR 338. The Court held that a reasonable apprehension of bias arose in a case where a decision maker, who was responsible for determining issues of breach and sanction, had before it at the time of deciding issues of breach (by assessing evidence and issues of credibility), material which was potentially relevant to sanction, but not relevant to breach, and which was prejudicial to the relevant employee. The Court considered that the decision maker could reasonably be seen to be influenced in an impartial manner. The Court also held that where a decision maker actually takes into account such irrelevant prejudicial material in making an adverse finding on credibility and on breach, it is an improper exercise of power in breach of administrative law requirements.
    
    
37. See s 28 of the PS Act and reg 3.10 of the PS Regs.
    
    
38. The suspension delegate should also be a delegate of the powers of the agency head under s 25.
    
    
39. Reassignment of duties is one of the sanctions available under s 15. In James v McDonald (unreported, Federal Court, Sackville J, NG 631 of 1994, 21 October 1994) the Federal Court held that a decision to reassign duties was invalid because it was based on a concern that the employee might have engaged in misconduct, and was exercised in a manner inconsistent with the restrictions and protections applying under the discipline regime in the PS Act 1922.
    
    
40. Compare Gaisford v Fisher (unreported, Federal Court, Finn J, ACTG 27 of 1996, 29 November 1996) where the Court found that a suspension on security grounds was invalid for a failure to give an opportunity to comment, despite the agency advising the employee that the suspension would be reviewed in light of any submissions and despite uncontested evidence before the Court as to security concerns said to justify summary suspension. This case concerned a security suspension, not a discipline suspension, but the same principles of procedural fairness would generally be applicable in misconduct matters: Gaisford v Fisher (unreported, Federal Court, Finn J, ACTG 27 of 1996, 29 November 1996); Fisher v Gaisford (1997) 48 ALD 200.
    
    
41. The concerns must be genuine and have a logically probative basis: compare Gaisford v Fisher (unreported, Federal Court, Finn J, ACTG 27 of 1996, 29 November 1996). Generally the relevant public interest grounds are the kind recognised by the law of public interest immunity.
    
    
42. Department of Employment and Workplace Relations v Oakley [PR 954267] AIRC(15 December 2004). See also Turner v Linkenbagh & Ors (constituting a Disciplinary Appeal Committee) (1994) 37 ALD 106 at [27].
    
    
43. For example, the procedures for ongoing employees may be different from those for non-ongoing employees.
    
    
44. See s 15(5).
    
    
45. See paragraph 5.2 of the Directions.
    
    
46. See paragraph 5.3 of the Directions.
    
    
47. See paragraph 5.4 of the Directions.
    
    
48. See paragraph 5.5 of the Directions. The Directions do not require the provision of a statement of reasons. Section 29(2) of the PS Act requires that a notice of termination of employment must specify the ground(s) relied on for the termination. Under s 29(3) the grounds which can be relied on include breach of the Code.
    
    
49. Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office [PR 961315] AIRC (11 August 2005).
    
    
50. See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390–1. In Bromet v Oddie [2003] FCAFC 213 at [115]–[116] the Full Court of the Federal Court held that a failure to meet a procedural requirement set down by a statutory instrument did not result in the ultimate decision being invalid.
    
    
51. See Farquharson v Qantas [PR971685] AIRC Full Bench (10 August 2006).
    
    
52. See generally, Managing breaches of the APS code of conduct, Australian Public Service Commission (2002).
    
    
53. See Baker v Commissioner of the Australian Federal Police (2000) 104 FCR 359, a case concerning parallel police disciplinary proceedings and criminal proceedings. See also Elliot v Australian Prudential Regulation Authority [2004] FCA 586, a case where there was an administrative enquiry which could lead to the exercise of regulatory powers, and where there was also the possibility of the laying of criminal charges. See also Sullivan v Secretary, Department of Defence [2005] FCA 786, where the Federal Court declined to order the employer to pay the legal costs incurred by the employee in legal proceedings brought by the employee. The proceedings were resolved on the basis of the giving of undertakings which had the effect that a Code of Conduct process was deferred pending the outcome of a possible prosecution, subject to the employee agreeing to being suspended from duties without salary.
    
    
54. Briginshaw v Briginshaw (1938) 60 CLR 336. The AIRC has held the Briginshaw standard applicable to APS misconduct matters; see for example Deer v Centrelink [T0091] AIRC (1 September 2000).
    
    
55. Associated Dominions Assurance Society Pty Ltd v Andrew (1949) 49 SR (NSW) 351 at 357–8 per Herron J.
    
    
56. (1985) 156 CLR 397.
    
    
57. (1992) 35 FCR 466.
    
    
58. In X v McDermott (1994) 51 FCR 1 at [43] to [49] the Federal Court held the privilege applicable in an inquiry process under the Defence (Inquiry) Regulations.
    
    
59. See Daniels Corporation v ACCC (2002) 213 CLR 543 at 559 and Rich v ASIC (2004) 220 CLR 129 at [24].
    
    
60. Compare cases under the PS Act 1922: Rose and Another v Bridges (1997) 79 FCR 378 and Buonopane v Secretary, Department of Employment, Education and Youth Affairs (1998) 87 FCR 173.
    
    
61. Compare Buonopane v Secretary, Department of Employment, Education and Youth Affairs (1998) 87 FCR 173, where it was held that – having regard to the misconduct regime under the PS Act 1922 – there was no obligation to accord procedural fairness in deciding to lay misconduct charges and thereby commence a formal misconduct process.
    
    
62. Rose and Another v Bridges (1997) 79 FCR 378.
    
    
63. McGibbon v Linkenbagh (1996) 41 ALD 219.
    
    
64. See s 25D of the Acts Interpretation Act 1901 (Cth) (the AI Act). The provisions of the AI Act apply to an instrument under an Act – such as the procedures under s 15(3) of the PS Act – whether or not the instrument is legislative: see s 13 of the Legislative Instruments Act 2003 (Cth) and s 46 of the AI Act.
    
    
65. See APSC Circular No. 2000/4. Some classes of non-ongoing employees might require employer consent for resignation, depending on their terms and conditions of employment.
    
    
66. In some agencies procedures under s 15(3) make provision for destruction of misconduct records. Record keeping and disposal provisions and practices must comply with the Archives Act 1983 (Cth). See part 6.5 of Managing breaches of the APS code of conduct, Australian Public Service Commission (2002). Under current disposal authorities under the Archives Act, records relating to Code of Conduct investigations which result in a sanction can be destroyed five years after action is completed. Where the allegations are not proven, or the allegation is not investigated (including frivolous or vexatious allegations) the records can be destroyed after 18 months. Agencies can choose to retain records longer if they wish.
    
    
67. See footnote 2.
    
    
68. See reg 5.24(2) of the PS Regs.
    
    
69. See reg 5.36 of the PS Regs.
    
    
70. Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; Caughley v Department of Defence [PR 947175] AIRC (27 May 2004).
    
    
71. In Uink v Department of Social Security (unreported, Australian Industrial Relations Commission, P1965, 24 December 1997) the AIRC ordered reinstatement of Mr Uink following termination of his employment for allegedly approving Centrelink payments to close personal friends. One of the reasons for the finding was that there was insufficient evidence. In addition, Mr Uink had not been given a proper opportunity to defend himself.
    
    
72. Purser v Commonwealth Attorney-General’s Department [PR 932560] AIRC (5 June 2003).
    
    
73. Ahmed v Department of Immigration and Multicultural Affairs [PR 920150] AIRC (16 July 2002).
    
    
74. Department of Employment and Workplace Relations v Oakley [PR 954267] AIRC (15 December 2004).
    
    
75. Corey v Attorney-General’s Department [PR 956106] AIRC (25 February 2005).
    
    
76. Cunningham v Australian Bureau of Statistics [PR 963720] AIRC (10 October 2005).
    
    
77. Patton v Department of Human Services [PR 946728] AIRC (14 May 2004).
    
    
78. Bauer v Australian Taxation Office [P8088] AIRC (14 January 1998).
    
    
79. Utting v Department of Social Security (unreported, Australian Industrial Relations Commission, Lawson C, P0267, 17 April 1997).
    
    
80. Williams v Centrelink [PR 942762] AIRC (15 January 2004).
    
    
81. McKeon v Centrelink [PR 911316] AIRC (15 November 2001).
    
    
82. Walsh v Australian Taxation Office [PR 951810] AIRC (5 October 2004). The full bench of the AIRC found no error of law and no public interest warranting the granting of leave to appeal. In Demicoli v Commonwealth Minister for Community Services – Child Support Agency [PR 953670] AIRC (25 November 2004) the Commission found that the dismissal of an employee was harsh, unjust and unreasonable and that reinstatement was not appropriate because there was evidence that the employment relationship was substantially damaged, the employee was on a performance management program which would make her return to work difficult, her health concerns mitigated against reinstatement and, even if the employee’s version of events was correct, it might still have warranted some form of disciplinary action.
    
    
83. See Section 75(iii) of the Constitution and s 39B of the Judiciary Act 1903 (Cth).
    
    
84. See the definition of ‘injury’ in s 4 of the SRC Act.
    
    
85. In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 at 83. Cooper J held that ‘the phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline’. He emphasised that it must be the disciplinary action itself, and not ‘the steps anterior to the decision to take such action’ which is covered in the Act. ‘Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning ... in the Act’ (at 84).
    
    
86. In Ramalingam and Comcare [2004] AATA 385 Senior Member Sassella decided that an investigation by a person other than a delegate, which was carried out in accordance with the certified agreement before referral of the matter to a delegate for determination as to whether there was any breach of the Code, did not constitute reasonable disciplinary action for the purposes of the SRC Act exclusionary provision. He found that disciplinary action did not begin until there was a determination that a breach of the Code had occurred, and that the investigation leading up to the determination was not disciplinary action for the purposes of the SRC Act.
    

AGS contacts

This briefing was prepared by Paul Vermeesch of our Canberra office.
For further information please contact Paul on tel 02 6253 7428
email paul.vermeesch@ags.gov.au or any of the following lawyers:

Sydney	Jim Heard	02 9581 7477
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Perth	Wendy Endebrock-Brown	08 9268 1113
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