Public Sector Employment Issues
As Australia’s capital city and seat of government for the nation, it is not surprising that the Commonwealth Government is the largest single employer in Canberra. Adding ACT Government employees, there are a significant number of public servants in the ACT with a legislative employment framework which makes for relatively unique employment issues, particularly in relation to public servant conduct.
The workplace conduct of public servants is governed by legislation. For Federal public servants, the Australian Public Service (APS) Code of Conduct and APS Values are contained in the Public Service Act 1999 (Cth). For the ACT Public Service (ACTPS), the code of conduct is found in the Public Sector Management Act 1994 (ACT). The codes of conduct establish the level of conduct expected of all public service employees and how public servants behave towards each other and the people they serve.
What is the purpose of a Code of Conduct?
Employees in the public sector are entrusted by the Government and community to undertake important work on the government’s behalf and have a high level of responsibility which is matched by the highest standards of ethical behaviour.
The conduct of public employees, during and outside of work hours, can have implications for the confidence the community has in the administration of a government agency.
The codes of conduct set out the standard of behaviour expected of agency heads and government employees providing the public with confidence in the way public sector employees behave, including in their exercise of authority when meeting government objectives.
The Code of Conduct for public sector employees
The codes of conduct provide a legislative standard by which all public sector employees are expected to behave while working and serving the public. These standards include the following:
- Behaving honestly and with integrity
- Acting with care and diligence
- When acting in connection to public service employment, treating everyone with respect and courtesy and without harassment
- Complying with all applicable laws and lawful and reasonable directions
- Maintaining appropriate confidentiality about dealings with Ministers and any Minister’s member of staff
- Taking steps to avoid conflicts of interest and disclosing any conflicts
- Using Commonwealth or Territory resources in a proper manner and for a proper purpose
- Not providing false or misleading information in response to a request for information made for official purposes
- Not improperly using inside information or the employees duties, status, power or authority to gain a benefit or advantage for the employee or any other person
- Upholding public service values and the integrity and good reputation of the employee’s agency and the public service
Investigations into alleged breaches of the code of conduct
As the conduct standards set for public servants are generally higher than the private sector, there is more scope for an employee to find themselves subjected to an investigation for an alleged breach of the code of conduct.
Failing to treat people with respect and courtesy at all times can be difficult and is often the subject of public sector misconduct investigations. It can be an easy complaint to make and a difficult complaint to defend, particularly when there are multiple instances of alleged breaches or multiple complainants.
While there is a level of discretion available to public service managers and HR as to whether a formal investigation is necessary or appropriate, if a formal investigation is commenced, the process involves the gathering and assessment of evidence, the making of findings of fact based on the balance of probabilities and decisions on breach and sanction flowing from those findings. Employees have the right to natural justice and procedural fairness, including being given the opportunity to respond to the allegations and any proposed decisions. It can be a process fraught with difficulties for the employee, the investigator and the decision-makers.
We strongly recommend that public sector employees who find themselves facing allegations of a breach of the code of conduct and an investigation seek legal advice before responding to any allegations.
Rights of review
Public sector employees have clearly established rights to review decisions affecting their employment. In the context of a code of conduct investigation, options include merits review by the Merit Protection Commission, and in some circumstances, judicial review of breach or sanction decisions by a court, provided the sanction is not termination of employment.
If the sanction decision is termination of employment, an employee may have grounds to make an application to the Fair Work Commission for an unfair dismissal or possibly a breach of general protections, depending on the facts of the matter.
Strict time limits apply to all review processes.
Again, it is recommended employees seek legal advice if they wish to commence a review of a breach or sanction decision.
Our employment lawyers have extensive experience in public sector employment issues and can provide advice and assistance to public sector employees on their terms and conditions of employment, investigations into alleged breaches of the codes of conduct and reviews of decisions impacting on employment.
If you need assistance, contact us at [email protected] or call (02) 5127 5261 for expert legal advice.