This Newsletter is to provide APS HR Professionals and other interested people insights and advice from the work of the Merit Protection Commissioner. It provides quick links, practical tips and information on where to get expert support on making good employment decisions.
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Tips for Code of Conduct Investigations
Tip: Separate the decision maker's findings and determination
When determining a breach of the Code of Conduct, the decision maker makes a finding on whether or not the employee under investigation has done what they are alleged to have done. If they have been found to have done what was alleged, they must then determine whether the person has breached particular
elements of the Code.
The following steps may assist decision makers provide a clear and logical determination of the allegations:
- Scope out the allegation – consider what the employee is alleged to have done and what facts need to be established to prove or disprove the allegations. Ask yourself, what evidence would prove they did or didn't do what was alleged?
- Make a finding on the allegation – after considering the evidence, make what are called 'findings of fact' as to whether the employee, on the balance of probabilities, behaved as stated in the allegation(s). Follow a logical reason process - start with the facts about which everybody is in agreement (the undisputed facts) and then consider separately the facts that are disputed. Lay out the evidence with respect to each disputed fact, reach a conclusion about which evidence you prefer and document your reasons for your conclusions.
- Make a breach determination – if you made a finding that the alleged behaviour occurred, the next step is to determine whether the behaviour breached the Code. The determination should state which element(s) of the Code was breached and provide the reasons why the employee's
behaviour constituted a breach of the Code. The decision maker's reasons help employees understand the determination and assists them to modify their behaviour so further breaches of the Code are unlikely.
- State the breach determination – regardless of who conducts the investigation, it is the decision maker's responsibility to clearly state their findings about each of the allegations BEFORE determining whether this amounts to a breach of the Code. The final determination is not merely a restatement of the allegation(s), it also addresses relevant submissions from the employee and new evidence obtained during the enquiry. Be clear in the breach determination about your findings regarding the allegation and determination on whether a breach of the Code has occurred.
Assisting other jurisdictions
Merit in Mexico
The Merit Protection Commissioner, Annwyn Godwin, was invited by the OECD to give a keynote presentation 'Public Ethics: Lessons from Australia' in Mexico City earlier this year. Mexico participated in an OECD integrity review and was interested in Australian initiatives in this area. Conference participants
were particularly interested in the APS approach of a culture informed by Values and the idea of using de-identified case summaries to illustrate and educate. Australia was often referenced in examples of good practice in this area.
Helping Norfolk Island's public servants
Norfolk Island has transitioned from self-government to a Commonwealth territory managed by a regional council. In January 2016, the Merit Protection Commissioner was appointed Public Service Commissioner for Norfolk Island until the transition was completed on 30 June 2016. Her appointment assisted
the Commonwealth and the Administrator to manage the effect of the transition on the 200 employees of the Norfolk Island public service. The role utilised the expertise of Annwyn Godwin and her office staff by providing employment review and appeal functions.
Information & workshops
Would you like to have a representative from the Office of the Merit Protection Commissioner (OMPC) present an information session or workshop on a particular topic?
The OMPC can help with tailored sessions for inclusion in induction, new supervisor and middle manager training. Call (02) 6202 3505 or email Melinda.Kopilow@apsc.gov.au
The MPC Business Manager can help put together a package of information on specific services offered on a fee-for-service basis; this includes the new service for Code of Conduct inquiries. Call the MPC business team on (02) 8239 5317 or email firstname.lastname@example.org
Resources of interest
Organisational health and behaviour
Scott Keller and Colin Price, 'Organizational health: The ultimate competitive advantage', McKinsey Quarterly, June 2011. http://www.mckinsey.com/business-functions/organization/our-insights/organizational-health-the-ultimate-competitive-advantage
Speech by Mr Peter N Varghese AO, Secretary of the Department of Foreign Affairs and Trade, 'Parting Reflections', IPAA , 9 June 2016. http://dfat.gov.au/news/speeches/Pages/parting-reflections-secretarys-speech-to-ipaa.aspx
Jeffrey Pfeffer, 'Human Resources from an
Organizational Behaviour Perspective: Some Paradoxes Explained', Journal of Economic Perspectives, Volume 21, Number 4, Fall 2007, pages 115-134.
Mark Emmert, 'What Exactly Have We Learned from Decades of Applying "Business Solutions" to Public Organizations?", Public Administration Review,
Volume 76, Issue 2 pages 213-214.
These resources provide a variety of perspectives to stimulate thought and discussion on relevant topics of interest. They do not necessarily reflect the views of the OMPC.
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Questions or comments?
Email us at Review@apsc.gov.au or call (02) 8239 5330