Code of Conduct

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Information for Code of Conduct reviews

Who is eligible to apply for a review of a breach of the Code of Conduct and/or sanction decision?

All current and some former non-SES employees of the Australian Public Service (APS) are eligible to apply.

If you are a current employee you can apply for review of:

-   a finding that you have breached the Code of Conduct

-   any sanction imposed.

If you are a former employee you can apply for review of:

-   a finding that you have breached the Code of Conduct, where that finding was made after you left APS employment.

There is no right of review of a sanction because it is not possible to impose sanctions on former employees.

If your employment was terminated as a sanction for breaching the Code of Conduct, you can take your case to the Fair Work Commission.

The Merit Protection Commissioner cannot review cases where the sanction is termination of employment.

The review scheme for employees of the Parliamentary Service who are found to have breached the Code of Conduct are similar to the APS.

Are there timeframes?

You have 60 days to lodge an application with the Merit Protection Commissioner (Regulation 5.23).

Do not wait to receive a sanction decision before applying for review of the breach decision.

If there is a delay in the sanction decision, you could be too late to seek review of the breach decision.

The timeframe for lodgement of an application for review of a sanction decision starts from the day the sanction was imposed, not the date when the sanction took effect.

It is important to apply for review within the time limits  (Regulation 5.23).

Exceptional circumstances

Applications received outside the 60 days will only be reviewed if the decision maker considers there are exceptional circumstances to explain the delay in applying for review.

Exceptional circumstances may include:

  • cases where extended sick leave significantly hinders an employee's ability to consider making a review application
  • where the significance or main effects of the action only became known some time after the action.

An exceptional circumstance would not usually include:

  • an employee arguing that they were not aware that they had a right to review
  • a circumstance that was ordinary or usual. For example moving to a new job or taking recreation or long service leave.
  • Note: APS employees have an obligation under Regulation 3.16 to inform themselves of the  Public Service Act, the  Regulations and the  Public Service Commissioner's Directions.

I have been suspended from my employment, is this reviewable?

Yes, decisions to suspend you from your employment are reviewable. Like other general employment matters, suspension decisions must generally be reviewed first by someone in your agency before you seek review by the Merit Protection Commissioner. See information on other employment matter reviews.

How reviews are conducted

What happens next?

  1. We acknowledge receipt of your application; if it isn't accepted we advise you of the reasons.
  2. Your agency is informed and asked for information from their Code of Conduct investigation file.
  3. Your case is assigned to a review adviser and delegate of the Merit Protection Commissioner.
  4. We will contact you about your review and may ask you for further information.
  5. Once all the information is considered, the delegate will make a recommendation and provide reasons for that recommendation to you and to your agency.

What next diagram

What do we consider?

The Merit Protection Commissioner considers:

  • the evidence gathered during the review (you will usually be given a copy of this information)
  • the employee's explanation for what happened and their concerns about the agency's decision(s).

The Merit Protection Commissioner reaches a conclusion about whether:

  • the employee did, or did not do, what is alleged
  • what the employee did, or did not do, was appropriate in light of the employee's responsibilities, agency policies etc
  • what the employee did, or did not do, was a breach of the Code of Conduct, and if so, what elements of the Code of Conduct were breached
  • if a sanction was imposed, was it appropriate in the circumstances of the employee's case.

In most cases, reviews  consider whether:

  • your agency substantially complied with relevant procedures, policy or guidelines
  • the requirements of procedural fairness were substantially observed
  • the decision under review was appropriate or reasonable in the circumstances.
  • The review does not consider whether it was appropriate to investigate the matter as a suspected breach of the Code of Conduct.

The Merit Protection Commissioner will then confirm, vary or set aside the agency’s decision(s).

The review does not consider whether it was appropriate to investigate the matter as a suspected breach of the Code of Conduct.