Alleged Breaches of Code
The State Service Code of Conduct, which is contained in section 9 of the State Service Act 2000 (the Act) reinforces and upholds the Principles by establishing standards of behaviour and conduct that apply to all employees, including officers and Heads of Agency.
Subsection 10(3) of the Act requires that the State Service Commissioner establishes procedures for the investigation and determination of whether an employee has breached the Code of Conduct. These procedures are established under Commissioner’s Direction No. 5 – Procedures for the investigation and determination of whether an employee has breached the Code of Conduct. The Direction provides Heads of Agency with the authority and procedural guidance to both investigate and determine alleged breaches of the Code in their agency.
Overview of Procedure
Broadly, the process is as follows:
- Should a Head of Agency have reasonable grounds to believe that there has been a breach of the Code, they must first appoint an Investigator and advise the employee of their intention to investigate the alleged misconduct. The exception to this rule is where a Head of Agency becomes aware that an employee has been convicted of a serious crime or an offence, in which case the matter may be determined without the need for investigation. Where an investigation is undertaken, the employee is to be given the opportunity to be interviewed and to provide documentary evidence.
- The Investigator must provide a written factual report to the Head of Agency on the outcome of the investigation and this must be provided to the employee with an opportunity to respond. The Head of Agency will then make a determination: if that determines that the employee has breached the code, the Head of Agency (as the Minister’s delegate) may impose a sanction in accordance with subsection 10(1) of the Act. Sanctions could include counselling, a reprimand, a fine, a reduction in salary or classification, reassignment to other duties, or termination of employment in accordance with section 44 or section 45 of the Act.
- Where any sanction, other than termination of employment, is imposed as a result of a determination, the employee has right of review to the Commissioner pursuant to subsection 50(1)(b) of the Act and in accordance with Commissioner’s Direction No. 7 – Review of Actions. Where a sanction of termination of employment is imposed, the appropriate industrial tribunal will deal with any dispute.
The procedures established under Commissioner’s Direction No. 5 – Procedures for Investigation and Determination of whether an employee has breached the Code of Conduct do not apply in respect of alleged breaches of the Code by Heads of Agency; the authority to investigate those matters is now with Tasmania’s Integrity Commission.
Unsatisfactory employee performance, including minor deviations from the standards of behaviour and conduct set down in the Code, may be managed within agencies without the need for formal investigation and determination processes as set out above.
Commissioner’s Direction No. 5 – Procedures for Investigation and Determination of whether an employee has breached the Code of Conduct
Commissioner’s Direction No. 7 – Review of Actions